Irma K. Nimetz

Nimetz Speaks on Estate Planning for Senior Law Day Collaborative

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, did a webinar, entitled: “Aging Adults & Estate Planning: How to Start The Conversation” for Senior Law Day Collaborative. In her presentation, Irma discussed how to start conversations with aging adults (parents, partners and/or friends) about estate planning and related issues; how, where and with whom you begin conversations about wills, trusts, powers of attorney, health care proxies and living wills, and/or financial assets; and what those conversations entail. The webinar discussed planning issues for today and ways to avoid estate litigation in the future. Senior Law Day Collaborative offers free legal and financial advice for Westchester County seniors and their families.

Nimetz Speaks on Surrogate’s Court Litigation

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke on “Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective for NY Attorneys” for myLawCLE. This webinar provided an overview of ethical issues arising in trusts and estates practice from the perspective of a Surrogate’s Court litigator and provided insights as to how attorneys can minimize their risk of becoming a “target” in Surrogate’s Court litigation.

McCarthy Fingar’s “Super Lawyers”

Six of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. Kristen Mackay Pennessi has been selected in the field of Family Law. Irma K. Nimetz has been selected in the fields of Estate & Trust Litigation, Estate Planning & Probate, and General Litigation. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Nimetz Appointed to House of Delegates of New York State Bar Association

Irma K. Nimetz, a member of our Appellate Practice, Surrogate’s Court Litigation and Trusts & Estates groups, was appointed to the House of Delegates of the New York State Bar Association on behalf of the Westchester County Bar Association. The House of Delegates is the governance and decision-making body of the New York State Bar Association and determines policies and develops positions on issues that affect the law and the legal profession.

Nimetz & Streng Speak on Ethics in Estate Planning

Irma K. Nimetz and Frank W. Streng, both members of our Appellate Practice, Surrogate’s Court Litigation and Trusts & Estates groups, spoke on “Ethics in Estate Planning” for the Elder Law and Disability Committee of The New York Women’s Bar Association.

Nimetz and Streng Win Digital Discovery Motion

Two of our Trusts and Estates litigators, Irma K. Nimetz and Frank W. Streng, made and won a motion to compel discovery in a case in which two individuals allegedly used their iphones to change the beneficiary on a decedent’s 401K plan on a financial services company’s web site. In Ellis v. Byrne, a case involving digital discovery, the Supreme Court, Westchester County, found spoliation, holding as follows: “Defendants ‘turned in’ their iPhones, and obtained replacement devices, while already aware that Plaintiff had accused them of using a computer device to unlawfully change the beneficiary designation.” The Court directed a turnover to McCarthy Fingar’s lawyers of the defendants’ iphones for forensic examination.

Streng and Nimetz Win Case in Which they Nullify An Alleged Gift in Surrogate’s Court

McCarthy Fingar’s lawyers sometimes represent clients in cases, in which, prior to death, there are questions on whether a valid gift was made by a decedent. Such cases bring on the need to commence a property turnover proceeding in the Surrogate’s Court under section 2103 of the Surrogate’s Court Procedure Act. In Matter of Elias Schwartz, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, representing the decedent’s daughter, successfully persuaded the Westchester Surrogate’s Court to nullify a gift allegedly made by the decedent of his house.

Nimetz Speaks on Discovery Proceedings in Surrogate’s Court

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke speak on “SCPA Article 21 Discovery & Turnover – A Practical Primer” before the White Plains Bar Association.

Nimetz & Streng Speak on “Ethical Issues: How to Avoid Becoming a Target in Will and Trust Contests”

Irma K. Nimetz and Frank W. Streng, both members of our Appellate Practice, Surrogate’s Court Litigation and Trusts & Estates groups, spoke at the Spring Section Meeting for the Trusts & Estates Law Section of the New York State Bar Association on “Ethical Issues: How to Avoid Becoming a Target in Will and Trust Contests”.

Nimetz Speaks on Will Contests on Senior Law Day

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke on “How To Contest A Will Or Trust And How To Prevent Your Family From Contesting Yours” for Senior Law Day Collaborative. Senior Law Day Collaborative offers free legal and financial advice for Westchester County seniors and their families.

Nimetz is a New McCarthy Fingar Partner

We are pleased to announce that Irma K. Nimetz has been elected as a new partner of the firm. Irma, who has wide experience in litigation in trusts and estates and other matters, is a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups.

Nimetz Elected to Board of White Plains Bar Association

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, has been elected to the Board of Directors of the White Plains Bar Association.

Nimetz Joins Firm as Associate Attorney

We are pleased to announce that Irma K. Nimetz has joined the firm as an associate attorney and is a member of our Appellate Practice, Commercial Litigation and Surrogate’s Court Litigation groups.  Prior to joining McCarthy Fingar, Irma was an attorney with the New York State Attorney General’s Office, where she received the Louis J. Lefkowitz Memorial Award for outstanding performance by an Assistant Attorney General. Irma has experience handling governmental investigations against individuals, businesses and not-for-profit organizations, as well as defending actions and Article 78 proceedings brought against the State of New York and its agencies.

Aging Adults & Estate Planning: How To Start The Conversation

Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective for NY Attorneys

Ethics in Estate Planning

Matter of Elizabeth R. Salerno (Sur. Ct., Westchester Co., 9-27-2023 – File No. 2021-2603)

Frank W. Streng, Irma K. Nimetz

Surrogate’s Court Litigation – Changing Beneficiaries of an Irrevocable Trust Agreement – Reformation of Trust Agreement or Will

McCarthy Fingar’s lawyers often represent clients in will and trust contests. Typically, such contests often involve decedents allegedly changing their wills or trust agreement and removing family or nonfamily members as beneficiaries. Here, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, represented a child who had been removed as beneficiary of an irrevocable trust agreement, which is an agreement that cannot be changed. The decedent made the following statement in her trust agreement: “Amendment and revocation. The Grantor does not reserve the right to revoke or amend this trust; the trust shall be irrevocable.” Yet, in an effort to convince the Westchester Surrogate’s Court that the decedent’s change of her irrevocable trust should be accepted, the other side argued that she intended to reserve the right to amend the trust and to change beneficiaries. Specifically, they asked the Court to “reform” the trust agreement, arguing that the lawyer who prepared the irrevocable trust agreement had, through an omission, made a mistake; and that the decedent had intended to reserve her right to change the beneficiaries. To support their case, they filed with the Court an attorney’s affirmation in which the attorney explained the decedent’s intention and stated that she, the lawyer, made a mistake. The Court rejected the “reformation” argument, finding that the language of the irrevocable trust agreement was unambiguous, thereby rejecting any efforts to introduce “extrinsic” evidence. Accepting McCarthy Fingar’s arguments, the Court determined that the decedent could not amend her irrevocable trust agreement, thereby permitting our client to continue to be a beneficiary of the trust agreement. The Court held as follows: “[C]ourts do not consider extrinsic evidence of intent where, as is the case here, the trust instrument itself is unambiguous.”

Matter of Elias Schwartz (Sur. Ct., Westchester Co. 10-25-2022 – File No. 2020-3053/E)

Frank W. Streng, Irma K. Nimetz

Surrogate’s Court Litigation – Gifting through a Power of Attorney of Form – Property Turnover Proceeding

McCarthy Fingar’s lawyers sometimes represent clients in cases, in which, prior to death, there are questions as to whether a valid gift was made by a decedent/decedent’s agent pursuant to an alleged power of attorney. Here, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, won partial summary judgment and persuaded the Westchester Surrogate’s Court to nullify a gift allegedly made by the decedent’s agent of the decedent’s house pursuant to an invalid power of attorney. In Schwartz, our client’s brother asserted that a trust, in which he was an alleged beneficiary, owned the decedent’s house, and that he was entitled to keep the proceeds of sale of the house that he sold during his father’s lifetime. However, the father did not sign the deed in which the house was transferred to the trust, and the brother had transferred the house through a durable power of attorney form. But, as Frank and Irma pointed out to the Surrogate’s Court, the power of attorney form was flawed: the portion of the form setting forth powers of the agent was not initialed by the decedent, and there was no statutory gift rider, the portion of the form necessary to allow a gift by an agent. As a result, the Surrogate’s Court held that the power of attorney form was not valid, and there was no valid gift. The Surrogate’s, and Court directed that the brother transfer the sum of $685,698.41 to our client as limited administrator of her father’s estate.

Ellis v. Byrne et al. (Sup. Ct., Westchester Co.; 11/21/2022; Index No. 64659/2021)

Irma K. Nimetz, Frank W. Streng

Surrogate’s Court Litigation – Change of Beneficiary Designation – Digital Discovery

McCarthy Fingar’s lawyers know that, to win a case, getting facts and documents through pretrial discovery is essential. Here, two of our Trusts and Estates litigators, Irma K. Nimetz and Frank W. Streng, made and won a motion to compel discovery in a case in which two individuals allegedly used their iphones to change the beneficiary on a decedent’s 401K plan on a financial services company’s web site. In a case involving digital discovery, the Supreme Court, Westchester County, found spoliation, holding as follows: “Defendants ‘turned in’ their iPhones, and obtained replacement devices, while already aware that Plaintiff had accused them of using a computer device to unlawfully change the beneficiary designation. Defendants do not argue otherwise. Thus, Plaintiff has met its burden to establish spoliation.” The Court then directed a turnover to McCarthy Fingar’s lawyers of the defendants’ iphones for forensic examination “along with any information necessary to access all of the images, data, and information in the iPhones.” The Court also directed defendants to answer interrogatories as to their iphones.

Matter of Francine Wechsler, Surr. Ct., Rockland (File No. 2013-225/G/H) (2-1-2019)

Irma K. Nimetz, Frank W. Streng

McCarthy Fingar’s Surrogate’s Court litigators sometimes represent clients in will construction proceedings, sometimes involving the issue of ademption. In Matter of Wechsler, Frank W. Streng and Irma K. Nimetz represented a sister and brother in a will construction proceeding in Surrogate’s Court, Rockland County, against three of their siblings concerning a provision in their mother’s will with respect to two New York City taxi medallions, which their mother distributed unequally amongst her 13 surviving children and 40 grandchildren. Despite the inclusion of the taxi medallions in her will, the mother sold both taxi medallions during her lifetime. The net proceeds of the sale of the taxi medallions were held in a joint bank account in the name of the mother and one of her daughters. Frank and Irma successfully argued that the lifetime sale of the taxi medallions caused an ademption of the mother’s specific bequest of the taxi medallions. Ademption occurs when a specific bequest, here, the taxi medallions, does not exist at the time of the testator’s death because it was sold, lost or destroyed. Because the mother’s will did not address the possibility of a sale of the taxi medallions before she died, Frank and Irma argued that the bequest of the taxi medallions adeemed, and the proceeds of the sale should be distributed in equal shares to the mother’s children under the residuary clause of her will. The Surrogate’s Court ruled that Frank and Irma, on  behalf of their clients, established that the law of ademption applied, and granted summary judgment in favor of the firm’s clients ruling that the bequest of the taxi medallions adeemed. The court also rejected the argument that one of McCarthy Fingar’s clients exercised undue influence to cause the sale of the medallions prior to the decedent’s death.

Probate Proceeding, Will of Francesca Morris, Surr. Ct., Dutchess (File No. 2019-240) (10-28-19)

Irma K. Nimetz, Frank W. Streng

McCarthy Fingar’s lawyers represent clients in all types of will contests, including cases in which a will not signed at the end was offered for probate. In Matter of Francesca Morris, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, represented a deceased father’s three adult children, who challenged a propounded instrument purporting to be the last will & testament of Francesca Morris, their grandmother. Francesca Morris had two children, a son who predeceased his mother and was survived by our clients, and a daughter, the aunt of our clients. The aunt filed an amended probate petition seeking to probate a propounded instrument pursuant to which the decedent/her mother bequeathed her entire estate to her daughter. Under a prior will, the decedent bequeathed her estate equally between her daughter and her son. Frank and Irma made a motion to dismiss the amended probate petition on the grounds that the propounded instrument was not executed in accordance with the strict statutory formalities required by the law, specifically New York’s Estates, Powers and Trusts Law (“EPTL”) § 3-2.1(a)(1). Frank and Irma argued that the testator, Francesca Morris, never signed the purported will “at the end of thereof” as required by law. Instead, at the will execution, which was not supervised by an attorney, a notary public signed the purported will where the testator was supposed to sign. As Frank and Irma asserted in their motion to dismiss, the testator only placed her initials on a self proving affidavit, which is not an integral part of the propounded instrument. The Court agreed with Frank and Irma, and denied probate. The Court ruled that the decedent’s initials, appearing solely on the self proving affidavit, did not constitute a signature “at the end” of the propounded instrument and failed to satisfy the statutory requirements of EPTL § 3-2.1 as a matter of law. The Court granted Frank and Irma’s motion to dismiss the amended probate petition pursuant to CPLR Rule 3211 (a) (1) and (7).

Probate Proceeding, Will of Elinor Haight, Surr. Ct., Westchester (File No. 2019-148/C) (2-28-19)

Irma K. Nimetz, Frank W. Streng

As part of our firm’s representation of clients in will contests, battles sometimes take place on applications for preliminary letters testamentary at the inception of the probate proceeding, that determines who shall administer the estate during the will contest. In Matter of Elinor J. Haight, Frank W. Streng and Irma K. Nimetz represented the sole nominated executor under her deceased mother’s codicil, dated March 10, 2015, and will, dated February 13, 2002. Both the codicil and the will were drafted by attorneys, who supervised the execution of the instruments. Our client’s mother named her daughter, as the sole executor in her 2015 codicil. In her earlier will, the mother nominated her daughter and her two sons, our client’s brothers, as co-executors. Frank and Irma filed an application for preliminary letters testamentary on behalf of their client in a contested probate proceeding. The two brothers opposed our client’s application for preliminary letters and asked the Court to deny our client’s application entirely, or to appoint one or both of them to serve as co-preliminary executor(s) arguing, among other things, that the codicil was procured by undue influence, duress and fraud. Frank and Irma argued that the Court should issue preliminary letters to their client pursuant to the well settled law under SCPA § 1412(2)(a), and reject the brothers’ unsubstantiated and conclusory allegations. Frank and Irma pointed out that by awarding preliminary letters to their client, the sole nominated executor, the Court would be honoring the testator’s preference in choosing the fiduciary and would enable the estate to be immediately administered since there may be a delay in probate. The Court agreed and awarded preliminary letters testamentary to the sole nominated executor, the firm’s client.

Krowe v. Todd, AAA Case No. 01-18-0000-4009

Irma K. Nimetz

Our Commercial Litigation lawyers represent clients in arbitration before the American Arbitration Association. James K. Landau  and Irma K. Nimetz successfully represented a business owner in a dispute with the other member of a closely held limited liability company. Here, our client commenced an arbitration through the American Arbitration Association seeking damages on theories of breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing and seeking an accounting and the imposition of a constructive trust based on certain alleged unauthorized use of company funds by the respondent. After the respondent interposed counterclaims and moved for summary judgment, a settlement favorable to our client was obtained in mediation.