New York Probate & Estate Litigation Blog

How To Avoid An Estate Fight

philaw@optonline.net (Philip Bernstein) — Sun, 16 Jun 2013 13:18:43 -0500

When asked for advice as to how to avoid the destructive kind of litigation which characterizes a contested estate, many lawyers will probably opt for a well-constructed in terrorem clause --a legal poison pill which threatens a potential contestant with the loss of his or her legacy.

Not so this lawblogger. To appreciate and understand my solution, you first have to imagine a beautiful summer day in the late fifties or early sixties. A family is headed into the mountains for a vacation in one of those old ":woody" station wagons. Mom and dad are chatting or listening to the radio in the front seat oblivious to their kids in the back seat.

The back seat, however, is total turmoil. Children calling each other vile names, fighting over toys or snacks and sneaking in a rabbit punch wherever an opportunity exists. Mom and dad continue to pay no attention whatsoever to this bedlam.

Scroll ahead to last Tuesday, about fifteen years after Dad has gone to his reward as the kids tearfully watch their mother lowered into the earth. Each walks separately to his or her car, takes out a cell phone and calls an estate attorney. GAME ON!

I was much influenced by the last interview given by Jackie Kennedy shortly before her death. She said that the most important thing she had achieved in her life was to make sure that her children loved each other. As I reflect on this Father's Day, I have to chime in "me too!".

It isn't always easy. Sometimes it takes a bit of therapy. Sometimes it takes a bit more money than you were prepared to spend. Always it takes a hands-on approach to parenting and an intensive interest in your children's lives. Do your best to deprive them of the ability to complain that you never approved of them. Do whatever you have to do. In the end, you will reap many benefits in your lifetime here on earth. When you are gone, you will have greatly minimized the chances that your kids will pick up their cudgels and hand over a big chunk of the wealth you spent a lifetime building to a lawyer like me. I won't mind.

Hugette Clark Saga Continues With Shocking Revelations That The Reclusive Heiress Was Ripped Off By A New York Hospital

philaw@optonline.net (Philip Bernstein) — Wed, 05 Jun 2013 23:40:42 -0500

The story of Hugette Clark, a reclusive copper heiress who died in 2011 at the age of 104 just keeps on getting stranger. Worth hundreds of millions of dollars at her death, she spent the last 20 years of her life as a private pay patient at New York's Beth Israel Hospital. As the New York Times now reports, she was not in need of hospital treatment when she entered the hospital but was allowed to stay there "as long as the hospital didn't need her bed". She was billed millions of dollars for her two decade stay at the hospital during which time she also made multi- million dollar gifts of cash and art to the institution as well as a million dollar bequest in her will.

The Times story raises a host of questions about Ms. Clark's residence at the hospital at the same time she was the owner of huge luxury apartments in New York where she had always lived and which she continued to maintain . Although her physical condition would have permitted her discharge from the hospital at any time, there is a glaring question about whether or not her preference for life in the hospital (which she professed to love) indicates some deep-seated psychiatric conditions for which treatment should have been offered so that she could have felt secure in making the decision to voluntarily return to her home.

It is interesting to note that Ms. Clark was a woman of multiple eccentricities who loved to play with dolls and was the target of a constant effort by hospital personnel to ingratiate themselves with her in order to encourage her to continue to make gifts to the institution.

Her estate now raises the issue as to whether or not Hugette was taken advantage of by the hospital which (see the letter in the Times article) appears to have viewed her as a cash cow and which saw her as a constant source of large cash donations which they apparently did what they could to encourage. It seems that as long as she was willing and able to pay a daily rate for her room which exceeded $1,200 in the 1990s she was a most welcome guest.

The relatives of Ms. Clark (who was childless) have mounted an effort in New York County Surrogate's Court to recover what they believe to be the excessive amounts of cash which Hugette was enticed to pay and donate to Beth Israel. This case will go to trial in September before Surrogate Anderson. Conventional wisdom would seem to indicate that there would be a settlement before a lengthy show trial would flood the press and the airwaves with the embarrassing "you can't make this stuff up" details of a healthy woman's twenty year stay in a hospital.

Surrogate Refuses To Nullify Testator's Choice Of Fiduciary

philaw@optonline.net (Philip Bernstein) — Mon, 20 May 2013 21:39:02 -0500

The New York Law Journal has reported a decision of Nassau County Surrogate Edward McCarty III in the matter of the Will of Barboni, 2013-373014(April 25) which upheld the nomination of an executor whose two children both contested the choice, claiming that he had unduly influenced their father.

The court pointed out that the aggrieved children had attacked their father's selection "in very broad strokes without any documentation or supporting evidence". Mere conclusory allegations in the absence of a showing of "good cause" or serious wrongdoing would not be sufficient to disqualify the nominee.

It is important to realize that the law is going to give a testator every opportunity to have the final say in the disposition of his or her worldly possessions, a job made all the more difficult by the absence of the one person who could have been called upon to explain it all. It is therefore necessary to come up with substantial proof if one is to challenge a decision made from the grave. Simple bare bones allegations will not allow one to do this successfully.

Summary Judgment Granted To Void Trust For Lack Of Capacity

philaw@optonline.net (Philip Bernstein) — Sun, 12 May 2013 20:10:33 -0500

Richmond County Surrogate Robert J. Gigante has ruled that a trust executed by an 88 year old decedent 61 days before her death was void for lack of mental capacity in the Matter of the Estate of Muriel Donaldson reported at 956 NYS2d 840. In this matter, the court granted summary judgment based upon the testimony of the decedent's physician and the drafting attorney.The court takes pains in its decision to differentiate between fraud, lack of capacity and undue influence, dwelling particularly on the difference between testamentary capacity and the level of capacity needed to understand a contract.

One need not have a high level of capacity to make a will. In fact, it is well-settled law that minimal capacity is required to do this. Normally, a will is executed in the presence of witnesses and the attorney drafter who leads the testator through the rite of due execution. A series of formal questions are asked of the testator who avers to have read the will and to understand it in the presence of the witnesses who have had the opportunity to observe the byplay between the testator and attorney and who then execute an affidavit that the testator understood the terms and conditions of the will, knew the extent and objects of his or her bounty and wanted the witnesses present during the will signing.

The trust in this matter is a far more complex document than a will. It requires a much higher level of capacity to understand its personal, legal and tax ramifications just to mention a few things. The court here saw the decedent as lacking sufficient mental capacity to understand the trust and ruled accordingly.

A motion for summary judgment cannot be granted where the court finds that there are any triable issues of fact. In the absence of compelling documentation and testimony, these motions rarely succeed. Here the court took note of the testimony of decedent's physician who contradicted an early letter by stating that he did not believe the decedent lacked the cognitive ability needed to understand the trust. The court further noted a lack of sufficient rebuttal to this testimony by the petitioner who merely took the position that this testimony was not enough to defeat a motion for summary judgment.

The final result of all of this is that the court directed that the trust property be returned to the estate to be distributed pursuant to the laws of intestacy. That, however, depends upon whether or not this decision will be appealed and what the result of this appeal may be. No sure thing where a motion for summary judgment is concerned so watch this space for further developments.

Adjournment Of 1404 Examination Extends Time To File Objections

philaw@optonline.net (Philip Bernstein) — Thu, 04 Apr 2013 21:10:23 -0500

The Supreme Court's Appellate Division has affirmed an order issued by Nassau County Surrogate Edward McCarty in the Matter of Palma A. Pascale 102 AD 3rd 796 which granted objectant's motion to compel production of certain documents prior to the completion of SCPA 1404 examinations. SCPA 1404 provides that objections must be filed within ten days of the completion of examinations. Here, however, objectant sought to leave the examinations open and incomplete subject to the production of the demanded documents. The appellate court ruled that the Surrogate providently exercised his discretion in directing the production of the material and providing that the objections would not have to be filed until materials were produced and the examinations completed.

Appellate Court Upholds Choice Of Executor

philaw@optonline.net (Philip Bernstein) — Tue, 15 Jan 2013 23:18:00 -0500

The Appellate Division of the Fourth Department has upheld the decision of the Erie County Surrogate which dismissed objections to the nomination of an executor in the Matter of the Estate of Carmen J. Russo reported at 954N.Y.S.2d 395 (A.D. 4 dept 2012). The decedent's daughter filed objections to probate, claiming that the proposed executor had a potential conflict of interest which would prevent serving as a fiduciary.

The court ruled that in the absence of actual misconduct, the fiduciary would not be rendered unfit to serve. The court opined that the testator's choice of executor should be given great deference and not be disregarded unless that executor is legally unqualified to act as fiduciary.

Frequently, your lawblogger's clients voice strong objections to a nominated executor. It should be kept in mind that absent outright misconduct, it is very difficult to disqualify a testator's choice of fiduciary. However, I have always advised that it may well be better to saddle a questionable appointee with the burden of fiduciary responsibility and simply wait in the weeds to enforce one's rights should the fiduciary run afoul of his or her obligations.

Court Denies Summary Judgment Where Ancient Wills Clash 34 Years After One Was Admitted To Probate

philaw@optonline.net (Philip Bernstein) — Mon, 26 Nov 2012 17:01:47 -0500

New York County Surrogate Nora Anderson has denied summary judgment and ordered a trial to determine whether or not letters testamentary issued in 1979 should be revoked and a will made one week later in 1978 admitted to probate in its place. The case, The Will Of Elmer H. Bobst is reported in today's New York Law Journal. The will offered by the objectants was recently discovered by the decedent's great granddaughter and it differs markedly from the one originally admitted to probate. The estate was worth more than ten million dollars 34 years ago.

This case has got to be rated as one of the top nightmares for any probate lawyer, not to mention the litigants involved. After nearly two generations, one can only imagine the problems caused by disappearing documents, as well as questionable memories and the likelihood that key witnesses may no longer be living. Some things you just can't make up! Stay tuned for details of the trial.

Getting Surrogate's Court Records

philaw@optonline.net (Philip Bernstein) — Sun, 26 Aug 2012 11:42:57 -0500

Your lawblogger frequently gets questions about how to obtain records of an estate. The Surrogate's Court is a court of public record and every document filed is available to anyone. You can get copies of the entire estate of your Aunt Minnie who died in 1912 if that is what you would like. The difficulty is that every one of the state's 62 Surrogate's Courts has its own procedures as to how to do this. The New York County Surrogate's Court has recently circulated a memo as to how to obtain its records which you can seehere. As this notice mentions, it is necessary to check with the clerk of the court in the county where the records you are seeking are kept, information available from the link contained in the memo.The clerk will inform you of the procedures his or her court has for either coming to court to retrieve the records or of having them sent to you.

Keep in mind that this means that once an estate is filed there are no secrets. If you think you are not getting all the information you should have, get the estate file from the court clerk and bring a copy to your lawyer who can explain your options to you.

Hugette Clark's Estate Continues In Total Disarray

philaw@optonline.net (Philip Bernstein) — Sun, 19 Aug 2012 11:13:48 -0500

Last year, I reported on the death of Hugette Clark, an eccentric copper mining heiress with an estate of hundreds of millions of dollars who died in May 2011 at 104 and no readily identifiable next of kin. I received inquiries from at least two ambitious folks who wanted to join the "I am Hugette Clark's next of kin" derby but had no way of proving their claims. Somehow, I think that I am not the only lawyer in this club. Today, theNew York Post has published an update of the Clark estate's progress (or lack of same) through the New York County Surrogate's Court.

The Post's article paints a strange and very sad picture of a virtually friendless, "poor little rich girl" who was obviously exploited by those around her and whose estate was in total disarray when she died. In her later years, there was no one to stop her from giving millions of dollars to caregivers. Even after it should have been clear that Ms. Clark was of dubious capacity, her advisors failed to have her mental condition reviewed. Of course, had they done so, her life would have been subject to the oversight of the Supreme Court's Incompetency judge who would promptly have put the brakes on the gravy train.

I normally heap criticism on the Public Administrator who often tends to charge a disproportionate amount for handling relatively small estates. Here, however, it is the P A who is dealing with the questionable gifts of millions of dollars, valuable collections and real estate as well as stacks of unpaid bills and unpaid taxes.

We will continue to report on further developments to this strange story as we learn them.

Don't Let Your Case Become A Lunchroom Munchy!

philaw@optonline.net (Philip Bernstein) — Sun, 05 Aug 2012 18:52:04 -0500

Reviewing the decision of Monroe County Surrogate Edmund A. Calvaruso which awarded the petitioner's attorney $5,955, after the executor appealed, the Fourth Department Appellate Division reduced the original fee to $2,977.50. This decision, in the Matter of the Estate of Katharine Dressauer N.Y.S.2d 760 also sets forth the factors by which a legal fee is determined. These factors include " the time and labor expended, the difficulty of the required skill to handle the problems presented, the attorney's experience, ability and reputation, the amount involved , the customary fee charged for such services, and the results obtained"

The factors listed by the Court are basic and are known --or should be known-- to every attorney able to find the courthouse. There is an important lesson (maybe there are two or three) to be learned by this case. The result here of a knock down, drag out fight in the Appellate Division was a reduction in the original legal fee by a whopping $3,000. Your faithful lawblogger would surmise that the time and expense invested in this appeal probably exceeded the entire amount in controversy. Certainly it costs at least $3,000 to go to the Appellate Division!

The next lesson for counsel is that pride is an expensive commodity. Mounting a full-scale battle over a $5,900 fee in the Appellate Division does nothing to enhance one's image in one of the most important courts in the state. My own opinion is that an attorney is cheapened by such a fight. The impression that this makes can do nothing positive for a lawyer's image the next time he or she appears before the Appellate Division, hopefully on a case where there is far more at stake than a few thousand dollars in legal fees.

Usually, the expense, delay and ordeal of appellate litigation provides enough grease to oil the wheels of settlement. Virtually any settlement --reasonable or not-- is better than ending up in front of four appellate division justices on such a trivial matter. A local justice once mentioned to me that certain cases become "lunchroom munchies", his way of saying that the really ridiculous stuff gets discussed by jurists over lunch on many occasions. Don't let your case become a lunchroom munchy.

Death And Your Emails

philaw@optonline.net (Philip Bernstein) — Sun, 05 Aug 2012 11:08:35 -0500

An article by Dennis Kennedy in this month's ABA Journal poses some interesting questions about our "digital estate". Keeping in mind that the "e" in email stands for "evidence" and "eternal", it is a sure bet that our on line presence will outlive us. That will apply to our email accounts, social networks, and all of the public, private and commercial places where we leave a record of our coming and going on line.

The idea of how to deal with all of these records and accounts is indeed a novel one and the author suggests a number of ways in which we can augment traditional estate planning with new concepts of dealing with our digital demise.

Your lawblogger has a slightly different take on this issue, however. The internet has been around for some time now and millions of us have regular dealings on Face book and with thousands of businesses and public agencies. I can honestly say that I have not encountered a single problem in any estate relating to digital records, at least nothing that doesn't fall within the normal record keeping which will leave our fiduciaries and relatives suitably informed of our on line comings and goings. Perhaps some of you have a different experience but it would seem that the problems of a "digital estate" are extremely rare if they do exist at all at this point.

Appellate Court Disallows 9%Judicial Interest On Executor's Surcharge

philaw@optonline.net (Philip Bernstein) — Fri, 03 Aug 2012 20:42:32 -0500

It is generally known and accepted that the executor of an estate may be surcharged for improper or excessive expenses incurred in the administration of the estate. That is what happened when the executor of the estate of Ann M Kadah surcharged $35,000 by the Surrogate of Onondaga County, John J. Elliott. Surrogate Elliott, however, went one step further by awarding statutory (9%) interest on the surcharge against the fiduciary. As reported in In Re Carano 946 N.Y.S.2d 755(A.D. 4 Dept. 2012) the Appellate Division of the Fourth Department was ruled to be an unfair penalty and was disallowed.

Don't Forget The Attic!

philaw@optonline.net (Philip Bernstein) — Wed, 01 Aug 2012 09:04:20 -0500

"Don't forget the attic" is an interesting reminder that comes from a fellow lawblogger at the Donnelly Ritigstein Law Firm. While I must count myself among the millions of you whose mothers unceremoniously disposed of our baseball card and comic book collections [growing up in New York in the fifties, my extensive collection would have been worth zillions today had it only remained in tact], occasionally a basement or attic yields some incredible treasure as witness the story of the Midwestern family who discovered a stash of valuable baseball cards left seventy years ago in an attic when their grandfather died.

It can be very daunting to confront an attic or garage in the home of a relative who spent generations hoarding possessions in boxes and bags. Before you call 800 Take My Stuff or some other such bulk clean out operation, it might not be a bad idea to spend some time sifting though the junk. Even if you do not find the rare and valuable treasure lurking in the corner, there is a great possibility you will stumble across some family heirlooms which will bring back some warm memories and which can be shared with other relatives. My own surprise came when I looked inside of a beat-up plastic container I was about to toss while cleaning my parents' home. In it were at least two hundred letters my dad wrote from the Pacific during World War II. Reading them made a tough time quite a bit easier and gave me a new perspective on my dad after Alzheimer's had taken him.

Some Lessons From Michael Jackson's Estate

philaw@optonline.net (Philip Bernstein) — Sun, 29 Jul 2012 19:34:41 -0500

Everybody seems to have a fascination with celebrities -- even when they have died. Your lawblogger has reported on controversies and conundrums arising after the deaths of Whitney Huston, James Brown Rosa Parks and others. Recently, we have seen a spate of stories concerning the estate of Michael Jackson, the "King of Pop".

Here is an article written by attorney Brian Mekdsy of Massachusetts. Mr. Mekdsy has some valuable observations based upon Michael Jackson's estate and how to avoid many of the pitfalls that have plagued it. It is important to learn from the mistakes of others to avoid making similar mistakes. Remember that while we generally do not have the wealth of the celebrities we follow, we are subject to making the same mistakes that they make ---but keep in mind that these errors tend to be more painful and costly when we make them!

Charges Of Thievery In The Surrogate's Court Gain Traction

philaw@optonline.net (Philip Bernstein) — Sun, 29 Jul 2012 18:48:24 -0500

Earlier this month I reported on the charges pending against Bronx County Surrogate Lee Holzman for failing to properly supervise a crony who had improperly billed an estate by hundreds of thousands of dollars. Today's New York Post has now done some in-depth reporting on this story in an article which also brings to light other alleged scams in other counties.

While the overwhelming majority of attorneys would have nothing to do with the shenanigans reported on here, the sad fact is that these cases do occur from time to time and , when rogue lawyers have the protection of a judge or clerk they are extremely hard to root out and prosecute.

The key to protecting oneself and one's clients from this sort of thievery is to make sure that there is a sensible estate plan in place and that the client is protected by a properly drawn and executed will and, if necessary, a trust. It is also necessary to update these documents so that new executors, guardians and trustees can be appointed after those originally designated die, become incompetent or move away. All of this will keep an estate from being administered by lawyers appointed by the court who may or may not do the job the client would have liked to have seen done.