The firm’s expertise in the area of Trusts and Estates permits our firm’s attorneys, with their wide-ranging skills and experience, to represent our clients in litigation matters before the New York Surrogate’s Court and the New York Supreme Court. We represent fiduciaries (executors, trustees and guardians) and beneficiaries of estates and trusts in a variety of contested proceedings. Trust and estate litigation for our clients has included will contests, contested estate and trust accountings, fiduciary removal proceedings, and various other types of proceedings in the trusts and estate area. These matters are not always local and sometimes require our attorneys to represent our clients’ interests both nationally and internationally. Indeed, our attorneys have successfully litigated estate matters in foreign jurisdictions as distant as Hong Kong, Lebanon and the United Kingdom where there have been multi-million dollar estates abroad.

In the Surrogate’s Court, the court and its personnel often encourage our clients to settle their disputes. A settlement before trial is reached only after careful consideration of the myriad of tax consequences inherent in such settlements. Sometimes, however, our attorneys are required to litigate such matters, both in jury and non-jury trials. In this area, our attorneys work closely with our Litigation attorneys.

A sampling of our firm’s work in Surrogate’s Court Litigation includes the following:

Will Contests

The firm has large experiences in Will Contests. In Will contests, the firm represents clients on both sides of the issue – both the named executors seeking to validate a Decedent’s Will and family members seeking to invalidate a Decedent’s Will. For example, in representing the Decedent’s brother, nephews and nieces in a Will contest, our attorneys successfully settled our clients’ challenge to changes in both a Will and a Trust Agreement which were executed by the Decedent very close in time to when proceedings for the appointment of a guardian in the Supreme Court [on the grounds of the Decedent’s inability to manage his property] had been brought.

In another matter, our firm was counsel to a named executor in which, at the trial level, a jury upheld a Codicil to the Decedent’s Will and threw out objections made to such Codicil by one family member. On appeal, the trial judge’s refusal to set aside the jury verdict was upheld by the appellate court. Matter of Marsh, 236 A.D.2d 404 (2d Dep’t 1997)

With the increased popularity of revocable trusts, "Will Contests" are often being litigated in the form of the alleged execution and funding of a revocable trust. In a relatively novel case, Matter of Hoffman, 6 Misc. 3d 1011A, 800 N.Y.S.2d 342 (Surr. Ct., Westchester 2004), the firm represented a client that was a beneficiary under her husband's Will of a membership in the New York Stock Exchange. However, even before the execution of his Will, the decedent allegedly created a revocable trust agreement for the benefit of a child of a prior marriage and allegedly transferred his NYSE seat to the trust. The NYSE seat had not been transferred to the trust through any assignment process but had been listed on a list of assets of the trust, with the following notation: "1. Membership in the New York Stock Exchange. The NY Stock Exchange does not permit registration of memberships in the name of trustees. Grantor and Trustees recognize this to be the case." Citing the provisions of a relatively new statute, EPTL 7-1.18, lawyers at the firm sought summary judgment against the trustees strictly on the question of the effectiveness of the transfer, arguing, among other things, that the recital of the NYSE seat as an asset of the trust in a schedule was not enough to consummate the transfer. The Cour agreed and dismissed this portion of the trustees' case.

The firm has had broad experience in the area of proceedings for the removal of fiduciaries, both in defending fiduciaries and in seeking such removal. For example, in Surrogate’s Court, New York County [Manhattan], the firm, at the trial and appellate levels, successfully represented a beneficiary seeking the removal of a preliminary executor who had acted improperly in the administration of the estate. Ultimately, the successor fiduciary, in properly administering the estate, uncovered substantial assets not previously disclosed by the former preliminary executor. Matter of Marsh, 173 A.D.2d 336 (1st Dep't 1991), app. dismissed, 78 N.Y.2d 990, mot. for lv. to appeal denied, 79 N.Y.2d 751 Later on, in this same estate, we successfully represented the successor executor at both the trial and appellate levels in contesting the former preliminary executor’s accounting and obtaining, amongst other things, surcharges/damages against that former fiduciary in excess of $1,600,000 for such fiduciary’s improper disbursement of estate assets. Matter of Marsh, 265 A.D.2d 253 (1st Dep’t 1999) (unanimous affirmance of surcharge in excess of $1,600,000 and award of attorneys fees against former fiduciary in the amount of $250,000), motions for reargument and for leave to appeal denied, ___ A.D.2d ___ (1st Dep’t 2000); mot. for leave to appeal denied, 2000 N.Y. LEXIS 1705 (Ct. of Appeals, June 13, 2000), appeal dismissed, __ N.Y.2d __ (2000).

In Matter of Goetz, 8 Misc. 3d 200 ( Surr. Ct., Westchester 2005), the Surrogate's Court faced the fairly novel issue of whether an attorney-in-fact could use the authority conferred on her in a power of attorney form to amend a trust created by another person to grant to herself a limited power of appointment over the trust remainder. Pursuant to the terms of the trust in question, the grantor reserved to himself the right to amend or revoke its terms during his lifetime. Representing a client that was adversely affected by the trust amendment, several lawyers at the firm successfully argued that the attorney-in-fact had no authority to make the trust amendment and that the trust amendment was invalid. The Surrogate held, among other things, that although the terms of the subject trust gave the grantor himself the right to revoke the trust or amend its terms, it did not confer the same authority upon the grantor's agent or upon any other person.

In our representation of children who were born out of wedlock, the firm, as part of discovery, sought a court order directing DNA testing of the post-humously produced blood serum of the decedent. In an evolving area of the law, the Surrogate's Court conditionally permitted such testing, provided that proof existed of the decedent's "open and notorious" acknowledgement by the decedent of his children. Matter of Seekins, 194 Misc. 2d 42 (Surr. Ct., Westchester 2002). Later on in the case, a settlement was reached in which a DNA test was conducted and the firm's clients received their fair share of their father's estate.

Acting either for fiduciaries or for claimants, the firm sometimes represents a client in a discovery proceeding, for which the issue is typically whether a particular item is an asset of the estate or belongs to the person in possession of that property. For example, in Surrogate’s Court, Westchester County, a discovery proceeding was commenced on behalf of a family member in order to recover important artwork that the client, during his mother’s lifetime, had permitted his mother’s caretaker to use. After the caretaker’s death, the caretaker’s family did not return the artwork to the owner’s family. This matter has been successfully settled.

Challenge of Beneficiary Designation – Qualified Plan

In Federal district (Southern District of New York) and appellate courts (Second Circuit), our attorneys represented a surviving spouse’s estate and successfully persuaded the court to invalidate a beneficiary designation on a qualified plan for the decedent’s child (to the exclusion of the decedent’s spouse) on the grounds that the beneficiary designation violated the spousal consent rules under ERISA. Lefkowitz v. The Bank of New York as Preliminary Executor of Estate of Irene B. Marsh et al., 996 F.2d 600 (2d Cir. 1993)

In Surrogate’s Court, Orange County, and on appeal, we successfully represented the Decedent’s children from his first marriage in litigation with the Decedent’s surviving spouse in relation to the surviving spouse’s efforts to obtain an interpretation of the Decedent’s Will that would have effectively excluded the Decedent’s children as beneficiaries under their father’s Will. Matter of Hickok, 140 Misc. 2d 650 (Surr. Ct., Orange 1989), affirmed, 158 A.D.2d 690 (2nd Dep't 1990), mot. for lv. to appeal denied, 76 N.Y.2d 712

In Surrogate’s Court, Westchester County, our attorneys represented a surviving spouse in litigation on the allocation of a settlement award of over $3 million. The settlement was made before commencing the trial of a medical malpractice cause of action. Our client’s wife had died in childbirth, survived by children of her first marriage and the only child of her marriage to our client. The executor of the estate, who was our client’s wife’s first husband, took the position that, for various reasons, no part of the settlement proceeds should be paid to our client. This matter has been successfully settled.

In representing a major health care institution, as a beneficiary under a Will, our attorneys, in Surrogate’s Court, Westchester County, and on appeal, successfully challenged the Executors’ interpretation of the Decedent’s tax apportionment clause in her Will, which interpretation would have deprived the charitable beneficiary of hundreds of thousands of dollars of its proper share of a multi-million dollar estate. Matter of McKinney, 117 Misc. 2d 173 (Surr. Ct., Westchester 1982), affirmed, 101 A.D.2d 477 (2nd Dep't 1984), mot. for lv. to appeal denied, 63 N.Y.2d 607

For further information on our Surrogate’s Court Litigation practice area, please contact Frank W. Streng.