|
|
- Property Turnover Proceedings - Motion for Summary Judgment/Dismissal
|
McCarthy Fingar often represents executors/administrators in SCPA 2103 proceedings. In these proceedings, an executor/administrator sometimes seeks to recover assets that were the alleged subject of a lifetime gift or a lifetime beneficiary designation. In one such case, Matter of Lyon, 9/28/2009 N.Y.L.J. 22 (col. 3) (Surr. Ct., Westchester County), Frank and Katherine Sohr Jedlicka represented familiy members, appointed as limited administrators, seeking to rescind a transfer of real estate on the grounds, amongst others, that the agent under a power of attorney form improperlly gifted the property to himself. In Lyon, the estate of the donee made a motion to dismiss our case, primarily citing the alleged failure of our clients to commence their proceeding within the applicable statute of limitations. The Court denied the motion, finding, among other things, that the statute of limitations never started, since our clients had no notification of the existence of the power of attorney, which power of attorney form was used to make the gift in question. |
- Will Contests - Summary Judgment Motions
|
Many Will contests are won and lost by summary judgment motions. Often, but not always, after pre-trial discovery is concluded, the petitioner - the individual seeking to probate a Will - makes a motion for summary judgment to dismiss the objections to probate. In one such case, Matter of Correa (Surr. Ct., Westchester County 5-20-2008), the firm, representing a beneficiary under the Will, successfuly moved to dismiss objections to probate, despite allegations that the beneficiary had acted improperly in the management of the decedent's assets when the beneficiary had acted as a guardian for the decedent during the decedent's lifetime. Holding that such allegations were wholly unrelated to the otherwise unsubstantiated proof submitted to set aside the dededent's Will, the Surrogate's Court, Westchester County, granted the joint motion made by Frank W. Streng and the attorney representinng the nominated executor under the Will and dismissed the objections to probate. |
|
Business and real estate estate are often a source of controversy in estates and trusts. In Matter of Zacharakis (Surr. Ct., Rockland County 3-12-2009), control of shopping centers in Rockland County was in controversy: the fiduciary of the estate had maintained legal control and the management of the corporations that owned the shopping centers by voting the estate's shares in the corporations to continue that control. Representing a beneficiary desiring to end the fiduciary's control over such shopping centers, Frank W. Streng and Gail M. Boggio successfully moved in Surrogate's Court to compel the distributions of shares of stock in the corporations in order to permit the majority of the beneficiaries (which included the firm's client) to control the management of the shopping centers. |
|
| "Will Contests" take different forms. Trustees
of a purported revocable inter vivos trust may claim title
to property that would otherwise be disposed of under a Will
or by intestacy (without a Will). 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 who 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 schedule 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,
Frank and his partners, Deborah Yurchuk McCarthy and Robert
M. Redis, 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 Court agreed and dismissed
this portion of the trustees' case. |
|
| Frank successfully settled a case in which the firm was
retained to represent the Decedent’s brother, nephews
and nieces in a Will/Trust contest. In this case, the Decedent
executed a Will and Trust Agreement very close in time to
that which proceedings for the appointment of a guardian had
been brought in the Supreme Court [on grounds that the Decedent
was not able to manage his property].
In another matter Frank, as counsel to the named executor,
successfully defended against objections to the filing of
a Codicil to the Decedent’s Will. At the trial level
a jury upheld the 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) |
- Removal Proceedings – Contested Accounting Proceedings
|
Frank effectively represented a beneficiary seeking the
removal of a preliminary executor who had acted improperly
in the administration of the estate. 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.
That decision ultimately led to a surcharge/damage award against
the removed fiduciary.
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), app. denied, 95 N.Y.2d 755 (2000); app. dismissed,
95 N.Y.2d 956 (2000) writ of certiorari denied, 532 U.S. 1038,
121 S. Ct. 1999, 149 L.Ed.2d 1002 (2001). In this same estate,
Frank and his partner, Robert M. Redis, 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
the former fiduciary in excess of $1,600,000 for the fiduciary’s
improper disbursements of estate assets. |
- DNA Issues - Proving Inheritance Rights of Nonmarital
Children
|
In his representation of children who were born out of
wedlock, Frank, 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 Frank's clients received
their fair share of their father's estate. |
- Challenge of Beneficiary Designation – Qualified
Plan
|
Frank and other lawyers at the firm successfully represented
a surviving spouse’s estate and 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) |
- Interpretation of Decedent’s Will and Accounting
Matters
|
Frank and the firm represented children of a Decedent’s
first marriage in litigation against the Decedent’s
surviving spouse where the surviving spouse sought (unsuccessfully)
to obtain an interpretation of her husband’s Will which
would have effectively excluded the Decedent’s children
as beneficiaries under the 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. |
- Allocation of Settlement of Medical Malpractice Award
Among Estate Beneficiaries
|
In a settlement in the Surrogate’s Court, Frank
successfully represented a surviving spouse in litigation
on the allocation of a settlement award of over $3 million
in which the wife of the firm’s client 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. |
- Interpretation of Decedent’s Will – Allocation
of Estate Taxes
|
Frank and the firm successfully represented a major health
care institution in challenging the Executors’ interpretation
of the Decedent’s tax apportionment clause in her Will.
The charitable beneficiary would have been deprived of hundreds
of thousands of dollars of its proper share of a multi-million
dollar estate had the Executor’s interpretation been
adopted. 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. |
|
| Prior results do not guarantee a similar outcome.
If you think you may require the assistance of Frank
W. Streng in any matter, email (fstreng@mccarthyfingar.com)
or phone (914-385-1022) him with any question you may have. |
| |
Copyright McCarthy Fingar LLP 2001-2010 All Rights Reserved |
|
