Irma K. Nimetz

Nimetz Elected as Secretary, Burke Elected to Executive Committee, of Westchester County Bar Association’s Trust & Estates and Tax Section

Irma K. Nimetz, who Co-Chairs our Estate & Trust Litigation group, was elected as Secretary to the Westchester County Bar Association‘s Trust & Estates and Tax Section. Natalie M. Burke, a member of our Trusts and Estates, Guardianship Practice, Estate & Trust Litigation, Taxation and Municipal Law & Land Use groups, was elected to the Section’s Executive Committee.

Nimetz and Streng Lecture on In Terrorem (“no contest”) Clauses

Two of our lawyers, Irma K. Nimetz and Frank W. Streng, who Co-Chair our Estate & Trust Litigation group, lectured at a Continuing Legal Education Program for the Westchester County Bar Association‘s Trust & Estates and Tax Section, entitled, “In Terrorem Clauses: Estate Planning and Litigation Scenarios.” Irma and Frank had won an appeal in the New York Court of Appeals (Carlson v. Colangelo) on an “in terrorem” clause, and the program focused on how lawyers should advise their clients when they are facted with an “in terrorem” cause problem.

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 and 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 again 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 Speaks on Estate Planning at 25th Annual Senior Law Day

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Estate & Trust Litigation and Trusts & Estates groups, presented “Aging Adults & Estate Planning: How To Start The Conversation” at the 25^th Annual Senior Law Day at the Westchester County Center. Senior Law Day offers free legal and financial advice for Westchester County seniors and their families.

Nimetz and Streng Author Article on In Terrorem Clauses for the NYSBA Journal

With their success in the New York Court of Appeals, Carlson v. Colangelo, two of our lawyers, Irma K. Nimetz and Frank W. Streng, who Co-Chair our Estate & Trust Litigation group, authored an article for the NYSBA Journal. The article, entitled, “What New York Lawyers Should Know About In Terrorem Clauses in Wills and Trust Agreements,” analyses Carlson and provides information and analyses on what lawyers should do in both planning and representing clients on Will and Trust Agreements containing an in terrorem clause.

Nimetz and Streng in the News

McCarthy Fingar’s lawyers are often involved in the most complex and most significant cases in New York. Having won a significant case in the New York Court of Appeals, Carlson v. Colangelo, two of our lawyers, Irma K. Nimetz and Frank W. Streng, who Co-Chair our Estate & Trust Litigation group, authored an article for The New York Law Journal. The article, entitled, “Court Rules Terrorem Clauses Are Enforceable but Strictly Construed,” analyses the Court of Appeals Opinion in Carlson, emphasizing that “attorneys must exercise caution in representing clients on potential challenges to trust agreements that contain an in terrorem clause.”

Nimetz and Streng Win Case in Court of Appeals Dealing with an In Terrorem Clause

We are pleased to announce that two of our lawyers, Irma K. Nimetz and Frank W. Streng, who both Co-Chair McCarthy Fingar’s Estate & Trust Litigation group, won a case in the New York Court of Appeals, New York’s highest court, in a case captioned Kristine M. Carlson v. Crissy Colangelo, individually and as trustee of the Donald P. Dempsey Revocable Trust, et al., 2025 N.Y. slip op. 02264 (2025). The case involved an “in terrorem” clause. An in terrorem clause, also known as a no-contest clause, is a provision in a will or trust that disinherits a beneficiary if they challenge the document’s validity or its provisions. In Carlson v. Colangelo, Irma and Frank represented a client, in which the lower court and one appellate court had determined that our client had violated an in terrorem clause, and, thus, forfeited her legacies under the decedent’s trust agreement. However, on appeal, the Court of Appeals, in a 4 to 3 opinion, disagreed with the lower courts and agreed with our client. Irma Nimetz, who argued the case, convinced the Court of Appeals that our client did not violate the in terrorem clause and thus did not forfeit her legacies.

2 McCarthy Fingar Lawyers Named New York Metro/Top Women Super Lawyers® for 2024

Irma K. Nimetz (Estate & Trust Litigation) and Susan Taxin Baer (Estate Planning & Probate) were recognized in the New York Metro/Top Women Super Lawyers. The attorneys named to this list were featured in a recent magazine supplement in The New York Times. The annual Super Lawyers® list recognizes the top five percent of lawyers in New York for their professional achievements. Lawyers are selected through a patented selection process that includes independent research, peer nominations and peer evaluations.

Nimetz Speaks on Malpractice in Estate Planning

Irma K. Nimetz, a member of our Appellate Practice, Estate & Trust Litigation and Trusts & Estates groups, spoke at the Annual Meeting for the Trusts & Estates Law Section of the New York State Bar Association on “Malpractice in Estate Planning”. Rising legal malpractice actions against trusts and estates practitioners result in nightmares for many attorneys. Irma’s presentation provided an overview of the elements of legal malpractice actions against estate planning attorneys and discussed best practices to help lawyers and law firms avoid such malpractice actions.

Streng Chairs and Nimetz Speaks at Calvary Hospital’s “Ethics for Breakfast” Program

Irma K. Nimetz and Frank W. Streng, both members of our Appellate Practice, Estate & Trust Litigation and Trusts & Estates groups, participated in Calvary Hospital’s 21^st Annual Trusts & Estates Conference,  “Ethics for Breakfast”. This year’s conference – “How a Lawyer Can Avoid Becoming A Target In a Will or Trust Contest” – featured a panel discussion on navigating the ethical challenges for lawyers in estate planning. For this conference, Frank was a Co-Chair and Irma participated in the panel discussion.

Nimetz Speaks on Ethical Issues in Trusts & Estates Practice

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Estate & Trust Litigation and Trusts & Estates groups, spoke on “Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective” for the White Plains Bar Association. 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 New York Metro Top Women Super Lawyers

Four of McCarthy Fingar’s lawyers are included in Super Lawyers’ listing of  New York Metro Top Women for 2023. Susan Taxin Baer, in Estate Planning & Probate; Gail M. Boggio, in Estates Trust Litigation; Kristen Mackay Pennessi, in Family Law; and Irma K. Nimetz in Estates Trust Litigation. 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 Speaks on Estate Planning for Senior Law Day Collaborative

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Estate & Trust Litigation and Trusts & Estates groups, gave a webinar, via Zoom, 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, Estate & Trust 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, Estate & Trust 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, Estate & Trust 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, Estate & Trust 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, Estate & Trust 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, Estate & Trust 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, Estate & Trust 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, Estate & Trust 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 Estate & Trust 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.

What New York Lawyers Should Know About In Terrorem Clauses in Wills and Trust Agreements

Court Rules Terrorem Clauses Are Enforceable but Strictly Construed

Malpractice in Estate Planning

How a Lawyer Can Avoid Becoming A Target In a Will or Trust Contest

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

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

Kristine M. Carlson, Appellant v. Crissy Colangelo, individually and as trustee of the Donald P. Dempsey Revocable Trust, et al., 44 N.Y.3d 116, 269 N.E.3d 179, 242 N.Y.S.3d 193 (2025)

Frank W. Streng, Irma K. Nimetz

Estate & Trust Litigation – Will and Trust Contests  – In Terrorem Clauses

McCarthy Fingar’s lawyers often deal with “in terrorem” clauses in estate and trust litigation involving Wills and Trust Agreements. An in terrorem clause, also known as a no-contest clause, is a provision in a will or trust that disinherits a beneficiary if they challenge the document’s validity or its provisions. In Carlson v. Colangelo, et al., two of our lawyers, Irma K. Nimetz and Frank W. Streng, represented a client, in which the lower court and one appellate court had determined that our client violated an in terrorem clause, and, thus, forfeited her legacies under the decedent’s trust agreement. However, on appeal, the Court of Appeals disagreed with the lower courts and agreed with our client. Irma, who argued the case, convinced the Court of Appeals that our client did not violate the in terrorem clause and thus did not forfeit her legacies.

In this case, Donald P. Dempsey, who was never married and did not have children, executed a pour-over will and revocable trust, The Donald P. Dempsey Revocable Trust, while he was hospitalized and shortly before he died. In the Trust, Donald, the grantor of the Trust (“grantor”, “Donald” or “decedent”) bequeathed a house in Cortlandt Manor, New York (the “Premises”) that he shared with Kristine M. Carlson (“Kristine” or “plaintiff”), a registered nurse and Donald’s girlfriend since 2004. Donald also bequeathed “a stream of income” of up to $350,000 to Kristine. The trustee of the Trust was Crissy Colangelo (“Trustee Colangelo”), the daughter of one of Donald’s former girlfriends. Trustee Colangelo was also a beneficiary under the Trust. The decedent provided for both Kristine and Trustee Colangelo in his will and Trust though the language of both instruments differ.

Two of the relevant provisions in the Trust provided:

B. After application of paragraph A of this Article, the Trustee shall distribute all of the Grantor’s interest or this Trust’s interest in and to Dempsaco LLC, a limited liability company operating at 122 Waterbury Manor, Cortlandt Manor, New York 10567, to CRISSY COLANGELO, presently residing at 8 Park Avenue, Apt. #1, Goldens Bridge, New York 10526, if she survives the Grantor. It is the Grantor’s sincere wish and desire that CRISSY COLANGELO provide a stream of income, not to exceed the sum of Three Hundred Fifty Thousand ($350,000) in total, to KRISTINE M. CARLSON, presently residing at 122 Eton Downs, Cortlandt Manor, New York 10567 if she is then living, or if she is not then living, to her then living issue, per stirpes. [Emphasis in original].

C. After application of paragraphs A and B of this Article, the Trustee shall distribute all of the Grantor’s interest or this Trust’s interest in and to 122 Eton Downs, Cortlandt Manor, New York 10567, to KRISTINE M. CARLSON, presently residing at 122 Eton Downs, Cortlandt Manor, New York 10567, if she survives the Grantor, or if she does not survive the Grantor, to her then living issue, per stirpes. [Emphasis in original].

Kristine alleged that she invested $100,000 in Dempsaco LLC with Donald and became a 50% owner of Dempsaco.

Both the will and the Trust contained an “in terrorem” clause. The in terrorem clause in Article Ninth of the Trust provided, in part, that:

In the event that any heir, distributee, beneficiary, agency, organization or other individual (“challenger”) shall contest any aspect of this Trust, or the distribution of the Grantor’s assets pursuant to his Last Will, inter vivos Trust Agreement, beneficiary designations or non-probate beneficiary designations, or shall attempt to set aside, nullify, contest, or void the distribution thereof in any way, then the Grantor directs that such rights of such challenger shall be ascertained as they would have been determined had that challenger predeceased the execution of this instrument and the Grantor, without living issue….

Trustee Colangelo did not notify Kristine that she was a beneficiary under the Trust until approximately two and one half years after Donald died. Trustee Colangelo advised Kristine, by a letter from the attorney for Trustee Colangelo, that Kristine was a beneficiary under the Trust of the Premises and a stream of income of up to $350,000.  However, Trustee Colangelo explained that she would only distribute the Premises to Kristine if she signed a receipt, release and indemnity agreement, which, among other things, provided that Kristine would release Trustee Colangelo from all liability and indemnify her. In addition, Trustee Colangelo informed Kristine that she would not receive the stream of income of up to $350,000 because the Trustee determined that the decedent used “precatory language” regarding the stream of income, that Decedent overestimated his estate and that the Trustee and Dempsaco lacked funds or assets “to pay anything” to Kristine.

Trustee Colangelo’s counsel rebuffed the attempts by Kristine’s counsel to resolve the impasse without litigation. Kristine then commenced a lawsuit against Trustee Colangelo and Dempsaco to enforce her rights under the Trust and to obtain the two bequests the decedent wanted her to receive.

In the litigation, Kristine commenced an action against Trustee Colangelo and Dempsaco in the Supreme Court, Westchester County. Plaintiff demanded, among other things, relief including an injunction directing the Trustee to distribute the Trust’s interest in the Premises to Kristine; a declaration that Kristine is a 50% member of Dempsaco; a declaration that Kristine is entitled to the stream of income up to $350,000, compensatory damages not less than $350,000, punitive damages, an accounting of Dempsaco’s income and expenses since Donald’s death and the imposition of a constructive trust on Dempsaco’s proceeds.

The Supreme Court denied Defendants’ motion to dismiss the Verified Complaint. Thereafter, while discovery was still ongoing, Defendants moved for partial summary judgment arguing that Kristine was not a member of Dempsaco; Kristine opposed the motion and cross-moved for summary judgment asserting that she was entitled to the Premises. The Supreme Court granted Defendants’ motion and denied Kristine’s cross-motion. Kristine did not perfect an appeal from this decision and order. Thereafter, Defendants moved for summary judgment arguing that by claiming a 50% interest in Dempsaco, Kristine violated the in terrorem clause in the Trust. Kristine opposed the motion claiming that her action was meant to construe and enforce the Trust, not contest it. Kristine also cross-moved for summary judgment on her claims concerning the Premises, the income stream and unjust enrichment. The Supreme Court granted Defendants’ motion and awarded Defendants’ attorneys’ fees. Kristine appealed to the Appellate Division, Second Department, which granted a stay of enforcement of the Supreme Court’s order.

The Appellate Division, Second Department, modified the Supreme Court’s order by denying Defendants’ motion for attorneys’ fees and otherwise affirmed.

In its Opinion decided April 17, 2025, the Court of Appeals held:

because plaintiff’s lawsuit seeks to enforce the Trust provisions as written and intended by the grantor, plaintiff did not attempt to nullify the Trust or challenge its terms. Thus, plaintiff did not violate the in terrorem clause and defendant is not entitled to summary judgment. We further conclude that plaintiff has established her right to summary judgment on her first cause of action regarding her ownership rights to the Premises and her motion should be granted to that extent.

The Court of Appeals held that there are triable issues of material fact as to plaintiff’s second cause of action concerning the income stream and remitted for resolution such action to the Supreme Court, and, in addition, held that plaintiff’s fourth cause of action seeking damages under an unjust enrichment theory must be considered, in the first instance, by the Supreme Court.

Further, the Court of Appeals found that:

• “We now clarify that in terrorem clauses in trust agreements, like those in wills are enforceable but not favored, and must be strictly construed.”

• “None of these causes of actions and demands [asserted by plaintiff/Kristine] for relief contests the legality of the Trust instrument.”

• “Nor does plaintiff challenge any of the Trust’s bequests. To the contrary, she seeks distribution of her bequests in full accord with the Trust and in satisfaction of the grantor’s intent.”

• “There can be no argument that her request for this distribution [the Premises] triggers the in terrorem clause.”

• “Plaintiff’s action to protect her interest in the Premises was wholly consistent with the grantor’s intent.”

• “Plaintiff’s action did not trigger the clause, and she is therefore entitled to judgment as a matter of law on this [first] cause of action seeking recognition of plaintiff’s title to the Premises.”

• “Plaintiff’s claim that she is a 50% member in Dempsaco likewise does not amount to a challenge to the Trust or to the grantor’s intent. Her claim does not trigger the in terrorem clause and result in a forfeiture of her bequests under the Trust.”

• “The purpose of the in terrorem clause is to discourage challenges to the Trust that would upset the grantor’s distributive intent. An action like plaintiff’s, meant to require the Trustee to distribute the Trust in accordance with its stated provisions, is not a challenge to the grantor’s distributive plan. Indeed, it would be contrary to the grantor’s intent to hold that a party cannot file an action to receive exactly that which the grantor set aside for transfer to their named beneficiary.”

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

Frank W. Streng, Irma K. Nimetz

Estate & Trust 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

Estate & Trust 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

Estate & Trust 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.