Trusts &#038; Estates

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Cutting Edge Estate Planning Strategies- Utilizing FLPs, GRATs & Sales to Defective Grantor Trusts to Leverage Gifts

by Howell Bramson on 09/26/2007

Credit Suisse Securities (USA) LLC

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Will Contests Including Preparation and Taking the Deposition and SCPA 1404 Examinations

by Frank W. Streng on 05/14/2007

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Revocation of Wills

by Gail M. Boggio on 11/28/2006

Co-Sponsored by Westchester Women's Bar Association and The Bank of New York Private Bank

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Probating Problem Wills

by Gail M. Boggio on 11/28/2006

Westchester Women's Bar Association and The Bank of New York Private Bank

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Current Status of Estate Planning Using Family Limited Partnerships and Limited Liability Companies

by Howell Bramson on 05/26/2006

UJA Federation of NY

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Introduction to Estate Planning – Ethical Issues

by Frank W. Streng on 10/05/2005

Trusts and Estates Law Section of the New York State Bar Association [Read in full]

Current Strategies Using Family Limited Partnerships

by Howell Bramson on 05/26/2005

UJA Federation of NY

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Estate Planning and Will Drafting – Ethical Issues

by Frank W. Streng on 05/19/2005

Trusts and Estates Law Section of the New York State Bar Association [Read in full]

Separation & Matrimonial Agreements & Implication in Estate Litigation

by Frank W. Streng on 04/18/2005

Westchester Women's Bar Association

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How to Examine the Witnesses to a Will & Defensive Estate Planning

by Frank W. Streng on 03/15/2005

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Ethical Issues for Trusts and Estate Lawyers

by Frank W. Streng on 10/05/2004

Lorman Education

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Property Turnover Proceedings under SCPA Article 21 and Ethical Issues in Surrogate’s Court Litigation

by Frank W. Streng on 06/07/2004

Westchester County Bar Association (Trusts & Estates Section)

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IRS Attacks on Family Limited Partnerships and Current Strategies

by Howell Bramson on 05/19/2004

UJA Federation of NY

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IRS Attacks on Family Limited Partnerships and Current Strategies

by Howell Bramson on 04/26/2004

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Ancillary Documents – Power of Attorney, Health Care Proxy and Living Will; Ethical Issues in Estate Planning

by Frank W. Streng on 11/24/2003

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Contested Accountings

by Frank W. Streng on 05/05/2003

Westchester Women's Bar Association

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Strategies for Avoiding a Will Contest . . . But Winning if you Can’t

by Frank W. Streng on 06/10/2002

Westchester County Bar Association [Read in full]

Ethics & Tactics In Surrogate’s Court Litigation

by Frank W. Streng on 05/21/2002

The Bank of New York

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Estate Planning for the Dysfunctional Family

by Frank W. Streng on 05/06/2002

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Checklist Examination of Executor’s Account

by Frank W. Streng on 11/14/2000

The Bank of New York

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Contested Probate Proceedings

by Frank W. Streng on 06/07/1999

Westchester County Bar Association (Trusts & Estates Section)

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Do I Need to Change My Will or Trust?

by Frank W. Streng on 05/08/1999

Legal Notes, Spring 1999

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Litigation in Accounting Proceedings in Estates & Trusts

by Frank W. Streng on 11/17/1998

Westchester Women's Bar Association (Trusts & Estates Section)

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Tax Law Changes Affecting Estate Planning

by Howell Bramson on 04/08/1998

Legal Notes, Spring 1998

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Discovery Proceedings, Creditor’s Claims & Other Miscellaneous Proceedings

by Frank W. Streng on 06/09/1997

Westchester County Bar Association (Trusts & Estates Section)

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Family Businesses: IRS Reverses its Position on Discounts for Gifts of Minority Interests to Family Members

by Frank W. Streng on 05/08/1994

Legal Notes, Spring 1994

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Distributions from Individual Retirement Accounts

by Howell Bramson on 07/01/1993

Legal Notes, Summer, 1993

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Appointment of Fiduciaries

by Frank W. Streng on 05/08/1993

Legal Notes, Summer 1993

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New Legislation Affects Spouse’s Right of Election in New York State

by Howell Bramson on 10/01/1992

Legal Notes, Fall 1992

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Estate Planning Strategies in Light of the Revenue Reconciliation Act of 1990

by Howell Bramson on 04/01/1992

Legal Notes, Spring, 1992

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Planning for Nursing Home Placement

by Frank W. Streng on 05/08/1991

Legal Notes, Spring 1991

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New York Wills and Trusts

by Frank W. Streng on 05/08/1990

Co-Author, Fingar, Bookstaver and McQuaid, (Shepard’s, 1990)

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Matter of Komar, File No. 2023-557/D (Surrogate’s Court, Rockland County – 5-22-2024)

Frank W. Streng, Irma K. Nimetz

Surrogate’s Court Litigation – Will and Trust Contests – Attorney Client Privilege – Guardianship Practice

McCarthy Fingar’s expertise in guardianship matters – where determinations of whether an individual is incapacitated (referred to as an “Alleged Incapacitated Person”, or “AIP”) – is important, especially when we represent a client in a Will Contest in an AIP’s estate. In an ongoing Will Contest, in Surrogate’s Court, Rockland County, Michael S. Kutzin succeeded on behalf of our client, the surviving son of the decedent, in challenging attorney-client privilege claims by a Florida lawyer (also licensed in New York), who claimed to represent the AIP during the guardianship proceeding. In the guardianship proceeding, a hearing was held to determine whether, under Mental Hygiene Law §81.10(a), the AIP freely and independently chose this Florida lawyer. The guardianship court held that the AIP did not do so, in part because the AIP testified that it was his granddaughter (and our client’s opponent in the will contest) who procured this lawyer.

In the Surrogate’s Court Will Contest, Michael subpoenaed this Florida lawyer for his complete file and any emails or other communications regarding his involvement in the AIP’s guardianship proceeding. The Florida lawyer refused to comply with the subpoena, claiming, in part, that any communications he had with the AIP were protected by attorney-client privilege. Michael then opposed a motion by the Florida lawyer in the Surrogate’s Court to quash the subpoena, in which we sought to compel the Florida lawyer to turn over his files as part of discovery in the Will Contest. In his motion papers, Michael argued that, since the Florida lawyer had been removed from the guardianship case, he did not enjoy an attorney-client relationship with the AIP, and that, therefore, no attorney-client privilege protected any of his files. The Surrogate’s Court agreed with Michael, holding, that, as the guardianship court had already determined that the AIP had not freely and independently retained the Florida lawyer, the requisite first requirement for attorney-client privilege was missing – to wit, an attorney-client relationship. The Surrogate’s Court evaluated the issue of attorney-client relationship as follows: “In its final ruling, the Court found that Decedent lacked the capacity and competence to manage his own affairs. The judgment and order resolving the guardianship proceeding, dated July 17, 2023, gave the guardian authority to “retain counsel in the State of Florida necessary to protect the [Decedent’s] property interests in Florida and to investigate and bring appropriate legal action including a disgorgement proceeding against [the Florida lawyer] for legal fees paid to him from the [Decedent’s] funds for alleged legal representation.” (Kutzin Affirmation in Opposition, Exhibit C, p.11 ). Given these facts, [the Florida lawyer] cannot be afforded the protection of the attorney-client privilege as such a relationship was never established.”

The Surrogate’s Court went on to find that the evidence in the Florida’s attorneys files was highly relevant to the Will Contest, stating as follows: “Further, the Court agrees with Respondent’s contention that communications between [the Florida lawyer], the attorney drafter of the Will and related documents, and Petitioner are relevant and are not privileged. The Petitioner was favored under the subject Will, and Decedent testified she had procured [the Florida lawyer] for him. These issues are relevant to determining the validity of the subject Will.”

As a result, Michael and his client will be receiving what they anticipate to be favorable evidence for the ongoing Will Contest and a related trust litigation.

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

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.”

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Matter of Rappaport, File No. 2010-2371 (Surr. Ct., NY County – 12-1-2023)

Frank W. Streng, Irma K. Nimetz

Surrogate’s Court Litigation – Enforcing Settlement Agreements – Assessment of Attorney Fees under Matter of Hyde

McCarthy Fingar’s lawyers are powerful advocates for our clients, and go to trial before judge and juries on our clients’ cases. However, most cases settle, often after complex settlement negotiations. In Matter of Rappaport, Frank W. Streng, representing an executor under the Will and trustees of trusts, negotiated the terms and conditions of a settlement in Surrogate’s Court, New York County. The settlement was then agreed to on the record before Surrogate Hilary Gingold, in which Frank’s adversary was represented by multiple attorneys. In view of the need for others to join the settlement, it was anticipated that there would be a written settlement agreement. But, Frank’s adversary changed his mind: he fired his lawyers and then refused to sign a written settlement agreement that was given to him and others to memorialize the in-court settlement. Frank then made a motion to the Surrogate’s Court to approve the settlement, based upon the adversary’s agreement on the record before the Surrogate. For various reasons described in the decision, Frank’s motion was granted, and his adversary’s cross motion was denied. Frank had another success: applying the principles in the Court of Appeal’s decision in Matter of Hyde, 15 N.Y.3d 179 (2010), Frank asked the Surrogate’s Court to assess legal fees against his adversary that were incurred by McCarthy Fingar in enforcing the settlement. On this issue, the Court ruled as follows: “In determining the sources from which legal fees are to be paid, the court must consider various factors, including, whether the unsuccessful party acted solely in his own interest and whether he acted in good faith (Id at 186-87). Upon consideration of these factors, it is evident that Errol’s conduct in failing to abide by the terms of the settlement agreement negotiated by the parties was frivolous and did not serve the interests of the estate. Thus, his share of the estate must be surcharged for the attorneys’ fees incurred to enforce the settlement in the sum of $31,095.”

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

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.

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

Frank W. Streng, Ryan J. McLeod

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.

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Matter of Fischer (Sur. Ct., Rockland Co., 12-5-2022; File No. 2020-587/C)

Surrogate’s Court Litigation – Prenuptial Agreements – Spousal Rights

McCarthy Fingar’s Matrimonial lawyers prepare prenuptial agreements and our Surrogate’s Court lawyers litigate the validity of such agreements. Clients make prenuptial agreements when a client is getting married for the second time and desires for his or her prospective spouse to waive rights to elect against the client’s Will or Trust Agreement. The idea is that client wants to give assets to his or her children from a first marriage. Here, two of our Trusts and Estates litigators, Frank W. Streng and Ryan J. McLeod, represented the executor of an estate, in which the decedent’s surviving spouse challenged the validity of the prenuptial agreement that she signed in the 1970s. Following pre-hearing discovery, including depositions of the surviving spouse, Frank and Ryan moved for summary judgment in Surrogate’s Court, Rockland County, in successfully dismissing the surviving spouse’s elective share notice filed under EPTL 5-1.1. In rejecting the surviving spouse’s elective share claim, the Court mentioned that the surviving spouse, relying upon the prenuptial agreement, availed herself of the prenuptial agreement by making a trust agreement in which, like the decedent, she gave her assets to children of her first marriage. The Court upheld the basic legal principle that, In the absence of proof of fraud, a prenuptial agreement will be upheld. The Court noted that the surviving spouse did not prove either fraud or overreaching.

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Matter of Burrows, 192 A.D.3d 1485 (4th Dep’t 2021)

Howell Bramson, Robert H. Rosh

Appellate Practice – Surrogate’s Court Litigation – Trusts and Estates – Petition to Appoint Successor Trustee

On their summary judgment motion, Rosh and Bramson established that the trust instrument required that the Trust be administered by two (2) trustees, but that, through deposition testimony and documentary evidence, the sole surviving co-trustee of the Trust was unfit to administer the Trust without the assistance of a co-trustee. In finding that the surviving co-trustee was unfit, the Surrogate’s Court found that the surviving co-trustee had failed to comply with various terms of the trust instrument, and had improperly delegated his fiduciary duties thereunder to another individual for years after the resignation of the original co-trustee of the Trust. The Surrogate’s Court consequently concluded that “[g]iven [the surviving co-trustee’s] less than adequate interest/ability to solely administer the Trust[,] together with the nature and language of the Trust, . . . two trustees (co-trustees) [were] necessary.” In granting our motion, the Surrogate’s Court further pointed out, and found, that the surviving co-trustee’s counsel’s argument that the proceeding was barred under the doctrine of res judicata, was without merit.

Matter of A.A. v. A., 184 A.D.3d 496 (1st Dep’t 2020)

Robert H. Rosh, Howell Bramson

Guardianship Practice – Guardianship of Adult Child – Dispute Between Divorced Parents

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases, including disputes over a guardianship of an adult child. While most people understand issues involving the care and custody of children is often front-and-center in a divorce case, sometimes even adult children with disabilities become collateral damage of a divorce as parents battle over guardianship of an adult child. This can happen for myriad reasons, including where well-meaning but ill-advised parents have a different vision for what kind of care the disabled child should receive. In Matter of A.A. v. A., Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and Trusts & Estates, represented, on a pro bono basis, the mother of an incapacitated child in the appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. The father had fought to become his daughter’s guardian and appealed the lower court decision, arguing that the daughter’s incapacity was brought on by the anti-psychotic medication that she was taking. The father further argues that he should have the right to take his daughter to a physician of his own choice, in his effort to demonstrate that it was the medicines that caused her illness. The mother, who had already prevailed in Family Court against such allegations when she obtained custody while the child was a minor, was named guardian in the lower court proceeding. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case. The First Department uphold the lower court decision, finding that the mother “had been diligently caring for [the daughter] for years and appropriately attended to her needs, and the absence of any evidence supporting plaintiff’s claims of improper medical treatment . . . “

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Matter of Burrows, File No. 2014-171 (Surr. Ct., Herkimer County) (5-28-2020)

Surrogate’s Court Litigation – Trusts & Estates – Will and Trust Contests – Summary Judgment Motions

McCarthy Fingar’s Surrogate’s Court Litigation lawyers represent clients in Will and Trust Contests. In Matter of Burrows, Robert H. Rosh and Howell Bramson represented the decedent’s surviving spouse and the decedent’s financial advisor, as preliminary executors of the decedent’s estate and trustees of a revocable trust, in a will contest and a parallel proceeding that was brought by the decedent’s minor children from a prior marriage (through the children’s court appointed guardian ad litem and natural guardian), to set aside a revocable trust. The decedent’s children, through their guardians, argued that the decedent’s surviving spouse exerted undue influence upon decedent in connection with the making and execution of the decedent’s will and revocable trust, and that the decedent lacked the capacity to execute the disputed instruments. Through their guardians, the children moved for summary judgment, and Robert, on behalf of the proponents of the decedent’s will and trustees of the trust, cross-moved for summary judgment. On that cross-motion, Robert demonstrated, through voluminous documentary and testimonial evidence, that the decedent was cognitively alert, oriented, and otherwise fit and able to execute the disputed instruments, and that the instruments were not the product of undue influence or duress. The evidence included the following: deposition testimony of: (a) the decedent’s financial advisor; (b), the decedent’s personal chef; (c) the decedent’s lawyer; (d) the decedent’s accountant; and (e) the decedent’s heath care providers, including the decedent’s treating physician and nurse, Robert also showed that the decedent’s Will was consistent with the decedent’s testamentary plan (as shown by multiple prior wills that had been made by the decedent), and that the objectant-children had no basis to complain, having been made beneficiaries under a prior trust that had been established by the decedent, having a value of approximately $30,000,000. The decedent’s will was consequently admitted to probate, and the revocable trust was found to be valid and enforceable in all respects.

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

Surrogate’s Court Litigation – Trusts & Estates – Will Contest – Construction Proceeding

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.

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

Surrogate’s Court Litigation – Trusts & Estates – Will Contest – Will Not Signed at End

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).

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

Surrogate’s Court Litigation – Trusts & Estates – Will Contests – Award of Preliminary Letters Testamentary

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.

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Probate Proceedings – Complicated Uncontested Will

Trusts & Estates– Probate Proceedings – Complicated Uncontested Will

Not all probate proceedings are created equal. In 2018, after taking over from prior counsel, Michael S. Kutzin succeeded in having a will admitted to probate that clerks in the New York County Surrogate’s Court referred to as one of the most complex uncontested matters that they had seen. In that case, the decedent, who was unmarried and had no children, had filed a prior will in the court which had a series of unusual provisions, including a trust for the benefit of first cousins once removed living in Ireland and England. She also had a large extended family in the United States and abroad. To complicate matters further, numerous beneficiaries and interested parties died after the decedent did but before the will was admitted to probate, making the probate particularly difficult. Nevertheless, through hard work and determination, Michael succeeded in having the will admitted to probate.

Matter of Tedesco (Surr. Ct., Westchester 2016) (File No. 2012-7811D)

Surrogate’s Court Litigation – Charitable Gift Annuities – Defense Against an Executor’s Claim to Decedent’s Gift

Our Surrogate’s Court Litigation lawyers sometime represent beneficiaries seeking to carry out a decedent’s intention as to gifts made to the client during the decedent’s lifetime. Here, Frank W. Streng successfully represented a client who was a successor beneficiary of a charitable gift annuity established by the decedent with Fordham University, against a claim brought against her by the executor of the decedent’s estate. The issue in the case was that the decedent, while fully competent at the time that he met with Fordham representatives and in the transfer of assets to fund the annuity, was hospitalized shortly thereafter and died in the hospital. The estate argued that the gift should be set aside because the decedent did not personally sign an annuity agreement sent to him by Fordham during his hospitalization. The Surrogate’s Court agreed with Frank and Fordham’s counsel, who sought and obtained summary judgment to dismiss the estate’s efforts to set aside the charitable gift. They argued, and the Court agreed, that the agreement to establish the gift annuity was fully enforceable well before the decedent was presented with the formal written agreement.

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Matter of Tedesco, Surr. Ct., Westchester (File No. 2012-781/B) (8-13-2014)

Frank W. Streng, Stephen Davis

Surrogate’s Court Litigation – Trusts & Estates – Will & Trust Contests – Summary Judgment Motions

In contested will proceedings, objections to probate must be grounded in admissible evidence to avoid dismissal. Here, Frank Streng and Dina Aversano successfully defended our client in a will contest between the decedent’s niece and nephew and our client, the decedent’s long-time, but unmarried, partner of over 40 years, by moving for summary judgment to dismiss objections to probate. A motion for summary judgment is appropriate where, like in this case, there are no issues of material fact to warrant a trial by a fact-finder. What made the case particularly unusual is that the executor named in the Will did not move for summary judgment, forcing McCarthy Fingar and its client, representing a beneficiary, to seek to uphold the will through the successful summary judgment motion.

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Matter of Compulsory Interim Accounting Proceeding in the Estate of Jacob Heller, Surrogate’s Court, Westchester County (2011)

Surrogate’s Court Litigation – Trusts & Estates – Contested Accountings – Tax Apportionment – Equitable Adjustment

Sometimes, litigation in the Surrogate’s Court involves actions taken in another estate or trust that harm our clients. Stephen Davis, representing the executors of a surviving spouse’s estate, settled a dispute with the trustees of the estate of the first spouse to die, resulting from the requirement under the Internal Revenue Code (IRC) for inclusion in the taxable estate of a surviving spouse the testamentary trust created by her pre-deceased husband for her lifetime benefit (QTIP Trust). Although the IRC specifically apportions the increase in taxes solely to the QTIP Trust, the IRC nonetheless creates conflict between next generation beneficiaries when executors are called upon to make a tax election unfavorable to them personally, but resulting in a greater tax benefit to the QTIP Trust. Reaching back to past estate litigation experience, Steve, now chair of the firm’s Tax Certiorari & Condemnation group, in collaboration with Frank W. Streng, chair of the firm’s Surrogate’s Court Litigation group, asserted at Surrogate’s Court and to the Trustee of the QTIP Trust, ancient and esoteric rules of fairness to achieve recoupment of the Estate’s $44,000 tax advantage (compared to a date of death valuation). In this instance, equitable adjustment, a form of implied contract, manifested itself as the duty of the QTIP Trust to make whole the beneficiaries of the surviving spouse’s estate from a loss imposed to achieve the Trust’s greater $345,000 tax benefit. Although equitable adjustment had been applied to other types of tax elections made by fiduciaries, e.g., a Warms Adjustment (1041 deduction vs. 706 deduction), there exists no reported case in New York applying the concept to a surviving spouse’s estate’s conflict with a QTIP Trust.

Matter of Hasbrouck, Orange County Surrogate’s Court (Decision dated November 7, 2011 – File No. 2010/460)

Gail M. Boggio

Trusts & Estates – Surrogate’s Court Litigation – Will & Trust Contests – Opposing Summary Judgment Motion to Dismiss Objections to Probate

In will & trust contests, success or failure in a case often depends upon the facts uncovered through pre-trial discovery. Here, Katherine Sohr Jedlicka and Gail M. Boggio successfully opposed a dismissal of their client’s objections that were made to the probate of the decedent’s purported Will on the grounds of lack of due execution, undue influence, and fraud. The Court denied the other side’s motion for summary judgment, since the motion was made even before the completion of court-ordered discovery.

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Matter of Sasso, unpublished decision of Westchester County Surrogate’s Court dtd. July 25, 2011 (File No. 2000-1938/E)

Gail M. Boggio

Trusts & Estates – Surrogate’s Court Litigation – Invalidating Release & Discharge Agreement

Litigation sometimes takes place when agreements are signed by clients and issues exist as to the enforceability and validity of such agreements. Here, Katherine Sohr Jedlicka and Gail M. Boggio successfully opposed a motion by the former attorney for an estate fiduciary and a cross motion by the estate fiduciary seeking, among other things, to dismiss objections to the fiduciary’s judicial accounting based on a Release and Discharge agreement signed by McCarthy Fingar’s client, who was not represented by a lawyer at the time the agreement was signed. The Surrogate’s Court denied the motions and set aside the agreement. The court ruled the movants had not proven that the objectant was given a copy of the fiduciary’s informal account on which the agreement was based, and that she was not given a sufficient amount of time to review the same. The court also denied the motion to dismiss on an alleged violation of the statute of limitations, finding the fiduciary had not openly repudiated her fiduciary duties.

Revocation of Letters Testamentary, Settlement Prior to Hearing

Frank W. Streng, Gail M. Boggio

Surrogate’s Court Litigation – Trusts & Estates – Fiduciary Removal Proceedings – Settlement Prior to Removal Hearing

Clients often to choose to settle their cases. Here, Katherine Sohr Jedlicka and Frank W. Streng successfully settled a case in which the firm was retained to represent the decedent’s brother and sister in removing the current executor because of his failure to file a judicial account as ordered by the court. McCarthy Fingar’s client was immediately appointed as temporary fiduciary pending a hearing for the executor’s removal. The executor resigned voluntarily prior to a hearing for his removal, and our client was appointed fiduciary.

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Matter of Zacharakis (Surr. Ct., Rockland County 3-12-2009)

Surrogate’s Court Litigation – Trusts & Estates – Contested Accountings – Business Assets

Business and real estate assets are often a source of controversy in estates and trusts. Here, control of shopping centers in Rockland County was in controversy. The fiduciary of the estate had maintained legal control and 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, Rockland County, 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.

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Matter of Lyon, 9/28/2009 N.Y.L.J. 22 (col. 3) (Surr. Ct., Westchester County)

Surrogate’s Court Litigation – 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 subject of an alleged lifetime gift or a lifetime beneficiary designation. In this case, Frank W. Streng and Katherine Sohr Jedlicka represented family 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 improperly gifted the property to himself. Here, the estate of the individual who received the alleged gift of real estate made a motion to dismiss our case, primarily citing the alleged failure of our clients to file their proceeding within the applicable three-year statute of limitations. The Surrogate’s 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.

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Matter of Correa (Surr. Ct., Westchester County 5-20-2008)

Surrogate’s Court Litigation – Trusts & Estates – Will & Trust Contests – Summary Judgment Motions

Many Will contests are won or lost by summary judgment motions. Often, but not always, after pre-trial discovery is concluded, the petitioner – the “proponent” seeking to probate a Will – makes a motion for summary judgment to dismiss the objections to probate. Here, Frank Streng and Dina M. Aversano, representing a beneficiary under a Will, successfully moved to dismiss the 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 Will, the Surrogate’s Court, Westchester County, granted the joint motion for summary judgment made by our firm and the attorney representing the nominated executor under the Will, and dismissed the objections to probate.

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Matter of Goetz, 8 Misc. 3d 200 (Surr. Ct., Westchester 2005)

Gail M. Boggio

Surrogate’s Court Litigation – Trusts & Estates – Will & Trust Contests – Invalidation of Trust Amendment

Will and Trust Contests comes in different forms. Here, 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, Gail M. Boggio and Robert M. Redis 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.

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Distribution of Proceeds of Settlement of Medical Malpractice

Surrogate’s Court Litigation – Allocation of Settlement of Medical Malpractice Award Among Estate Beneficiaries

After a medical malpractice verdict or settlement, litigation sometimes takes place on who gets the money. Frank W. Streng successfully represented a surviving spouse in a Surrogate’s Court Litigation matter on the allocation of a settlement award of over $3 million. 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.

Matter of Hoffman, 6 Misc. 3d 1011A, 800 N.Y.S.2d 342 (Surr. Ct., Westchester 2004)

Surrogate’s Court Litigation – Will & Trust Contests – Revocable Trusts

“Will Contests” take different forms, and the lawyers in our Surrogate’s Court Litigation group have experience in virtually every area. 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, in Hoffman, 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, McCarthy Fingar lawyers, Frank W. Streng, 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.

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Matter of Seekins, 194 Misc. 2d 42 (Surr. Ct., Westchester 2002)

Surrogate’s Court Litigation – Trusts & Estates – Kinship Proceedings – Proving Inheritance Rights of Nonmarital Children through DNA Testing

Sometimes, inheritance rights depends upon proving kinship of family members through DNA testing. Here, Frank W. Streng represented children of the decedent who were born out of wedlock and were seeking their rightful share of their father’s estate. As part of discovery, Frank 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. Later on, the case was settled and a DNA test was conducted. As a result of the DNA test, Frank’s clients then received their fair share of their father’s estate.

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Settlement of Will Contest When Decedent had Lifetime Guardian Proceeding

Surrogate’s Court Litigation – Trusts & Estates – Settlement of Will Contest

Clients often choose to settle their cases. Here, Frank W. Streng 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 the date when proceedings for the appointment of a guardian had been brought in the Supreme Court. The guardianship proceeding was based on grounds that the decedent was not able to manage his property.

Matter of Marsh, 265 A.D.2d 253 (1st Dep’t 1999), app. denied, 95 N.Y.2d 755 (2000), app. dismissed, 95 N.Y.2d 956 (2000), cert. denied, 532 U.S. 1038, 121 S. Ct. 1999, 149 L.Ed.2d 1002 (2001)

Surrogate’s Court Litigation – Appellate Practice – Contested Accountings

Our lawyers often represent beneficiaries in contested accountings of executors and trustees. In one such case, Frank W. Streng and Robert M. Redis succeeded at the trial court level and obtained a surcharge against a former executor in excess of $1.6 million and an award of attorneys fees against that former fiduciary in the amount of $250,000. Bob and Frank then succeeded in upholding the Surrogate’s Court’s determinations on all appeals.

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Matter of Marsh, 236 A.D.2d 404 (2d Dep’t 1997)

Surrogate’s Court Litigation – Appellate Practice – Will & Trust Contests

McCarthy Fingar often represents clients in Will & Trust Contests. Frank W. Streng, as counsel to the named executor, successfully defended against objections to the filing of a Codicil to the Decedent’s Will. At trial, a jury upheld the Codicil to the Decedent’s Will and threw out objections made to such Codicil by one family member. On appeal, we persuaded the Appellate Division, Second Depatment, to uphold the trial judge’s refusal to set aside the jury verdict.

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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)

Howell Bramson

Surrogate’s Court Litigation – Appellate Practice – Taxation – Spousal Consent – Challenge of Beneficiary Designation on Qualified Plan

Our lawyers often represent clients in dealing with beneficiary designations on pension and qualified plans. In one such case, Howell Bramson, Robert M. Redis and other lawyers at the firm successfully represented a surviving spouse’s estate and persuaded the lower 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. The trial court’s determination was upheld, on appeal, by the Second Circuit Court of Appeals. The appeal also deal with significant legal questions, such as the applicability of ERISA to controlled foreign corporations and whether these sufficiently implicated the Interstate Commerce Clause of the United States Constitution.

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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

Surrogate’s Court Litigation – Appellate Practice – Fiduciary Removal – Business Issues

Our lawyers often represent beneficiaries that suffer financial injury through improper actions of executors and trustees. Here, Frank W. Streng represented a beneficiary at a trial to obtain the removal of a preliminary executor who had acted improperly in the administration of the estate. The removed fiduciary appealed, and Frank and other McCarthy Fingar lawyers, Robert M. Redis and Deborah Yurchuck McCarthy, successfully persuaded the appellate court to affirm the trial court’s decision to remove the fiduciary.

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Matter of Hickok, 140 Misc. 2d 650 (Surr. Ct., Orange 1989), affirmed, 158 A.D.2d 690 (2d Dep’t 1990), mot. for lv. to appeal denied, 76 N.Y.2d 712

Surrogate’s Court Litigation – Appellate Practice –Contested Accountings – Interpretation of Decedent’s Will

Often, there are issues on the interpretation of a Decedent’s Will that can have large effect on the Decedent’s testamentary plan. In this case, Frank W. Streng, and other lawyers at 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. The other side appealed, and the appelate court affirmed the lower court ruling.

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Matter of McKinney, 117 Misc. 2d 173 (Surr. Ct., Westchester 1982), affirmed, 101 A.D.2d 477 (2d Dep’t 1984), mot. for lv. to appeal denied, 63 N.Y.2d 607

Surrogate’s Court Litigation – Appellate Practice – Taxation – Interpretation of Decedent’s Will – Allocation of Estate Taxes

Sometimes, the tax apportionment clause – an often overlooked clause in a will – has a huge impact on the actual distributions under a will. In this case, Frank W. Streng and others at the firm successfully represented a major health care institution in a contested accouting proceeding in which we challenged 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 executors’ interpretation been adopted. The lower court opinion was affirmed by the appellate court.

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Relocation to Different State – Lack of Support Systems for Incapacitated Person

Guardianship – Trusts & Estates – Relocation to Different State – Lack of Support Systems for Incapacitated Person

Guardianship cases are designed to be flexible tools to protect the interests of an incapacitated person. Sometimes, however, people forget that and become more concerned with technical compliance with the law than with protection of the incapacitated person. In January, 2020, Michael S. Kutzin persuaded a judge in Manhattan, over the objections of the City of New York, court appointed counsel and an institutional temporary co-guardian that the brother of the incapacitated person acted properly in relocating her from New York to Oregon without prior court approval when her safety was endangered. The incapacitated person, who lived alone, had no memory and little understanding of her circumstances, brought a young man into her apartment late at night. The young man was recorded in security cameras leaving the apartment very early in the morning. The Court agreed that, in the absence of any support systems in New York, the brother, who was also co-guardian, acted properly in removing his sister to Oregon to be closer to her father and family members, and approved his request to have the guardianship transferred to Oregon.

Family Hostility – Revocation of Health Care Proxy