Winning a Contested Probate Proceeding

By: Gary E. Bashian, Esq.

When one thinks of Surrogate’s Court litigation,contested probate proceedings immediately come to
mind. While each of the objections to probate present unique challenges for any advocate, an objection based on a decedent’s lack of testamentary capacity can be particularly difficult.

However, it should come as no surprise that medical records are often the evidentiary key to establishing Continue reading


Top Five Areas of Concern about the New Statutory Short Form Power of Attorney

By: Gary E. Bashian, Co-Author


Prior to September 1, 2009, New York’s power of attorney form was simple to fill out and could be bought in local stationery stores without the need to go to an attorney. However, tabloid-worthy horror stories of agents misusing their power to steal from the aged and infirm led the legislature to react—and some might say overreact. A sweeping new financial-powers law took effect in New York on September 1, 2009, and it has created some unintended traps for residents.

Continue reading

A Recent Primer on Undue Influence: Estate of Julia Elizabeth Taschereau

By: Gary E. Bashian, Esq.*


On October 29, 2010 Surrogate Webber, of the N.Y. County Surrogate’s Court, rendered a decision regarding the Will of Julia Elizabeth Taschereau (NYLJ 1202474902148 at *1) which offers a detailed illustration of how to meet the evidentiary burden of proving Undue Influence in a Will contest.

Objecting to a Will on the grounds of Undue Influence presents evidentiary challenges. The close relationships that often surround an allegation of Undue Influence make it difficult to prove by direct evidence. The burden is on the Objectant to prove motive, opportunity, and the actual exercise of Undue Influence.

Continue reading

When Drafting a Power of Attorney, Use Caution if Appointing a Monitor

When discussing the possible use of a power of attorney within New York State with a client, attorneys should take care in regard to the potential appointment of a monitor. Though the appointment of a monitor may appear to provide the principal additional protections against misconduct by an agent, the appointment of a monitor may only result in unrealistic expectations and a false sense of security if additional language is not added to modify that power of attorney.

In its 2006 decision for In Re Ferrara, the Court of Appeals stressed the need for agents appointed within a power of attorney to act consistent with the best interests of the principal.[i] The GOL was thereafter modified to provide individuals with more protections when creating a power of attorney.[ii] Continue reading

Technical Corrections to the New Statutory Power of Attorney and Statutory Major Gifts Rider

By: Gary E. Bashian, Esq.


On September 12, 2010, the Technical Corrections Act, signed by Governor Patterson August 15, 2010, will take effect, modifying the recently changed Statutory Short Form Durable Power of Attorney and General Obligations Law in a number of important ways. All references to the statute herein are to the General Obligations Law

These changes affect several areas, including: (1) allowable agents under the statutory Power of Attorney, (2) terms of revocation, (3) changes to the Statutory Major Gifts Rider, 94) an agent’s powers regarding Trusts and to engage in alternative dispute resolution, (5) requirements for third parties to accept an agent’s power under the form, and (6) effective Powers of Attorney created in other states or jurisdictions.

Some of these changes are broad ad uniform; others are more specific and directed.

Continue reading

Revoking a Waiver and Consent Is Not As Easy As You Think

American author Alfred A. Montapert once said that “nobody ever did, or ever will, escape the consequences of his choices.” That statement holds true in the field of trusts and estates, in particular when it comes to the execution of a waiver and consent in a probate proceeding. As this article will show, a party to a probate proceeding must exercise care in signing such a document, as it carries with it powerful consequences that cannot be easily undone.

Continue reading

Discovery Under the Surrogate’s Court Procedure Act: a Primer

Often when the issue of a discovery proceeding is raised in either a will contest, accounting contest or related litigated estate matter, the initial reaction by the attorney is to assume that reference is being made to the discovery and disclosure permitted by Article 31 of the Civil Practice Law and Rules. While the attorney would be correct in believing that the provisions of Article 31 of the CPLR and other laws relevant to practice and procedure apply in the Surrogate’s Court, a discovery proceeding in the Surrogate’s Court, as many attorneys have learned the hard way, is a beast of a different color.

The purpose of this article is to acclimate the general practitioner with some of the intricacies of Sections 2103 and 2104 of the Surrogate’s Court Procedure Act (SCPA) relevant to a discovery proceeding and to briefly touch upon what is commonly referred to as a reverse discovery proceeding permitted by Section 2105 of the SCPA.

Continue reading

Surrogate’s Court Wrongful Death Compromises 101

In any wrongful death action, a successful outcome for your client will doubtlessly be hard won. However, whether recovery comes from an “action or by settlement without an action,”[i] counsel’s job is far from over once an award is procured in the Supreme Court as the final phase of wrongful death litigation involves Petitioning the Surrogate’s Court to direct the final distribution of the recovery from the Decedent’s Estate to the proper parties.

Continue reading

“I Did, but now I Don’t.” Vacatur of a Probate Decree Admitted on Consent Rarely Granted

“Droll thing life is — that mysterious arrangement of merciless logic for a futile purpose. The most you can hope from it is some knowledge of yourself — that comes too late — a crop of inextinguishable regrets.”

― Joseph Conrad


Clients often come to regret past decisions, and very often seek counsel for a means to resolve the difficulties and complications that result from them. Commonly, a client will approach counsel, often indignant, sometimes sheepishly, and ultimately admit that they have found themselves bound to an agreement of which they now want, for lack of a better term, to get out of. An unforeseen, unintended, or a simply poor result has forced a reconsideration and change of mind as is often the case; what was once opportunity, is now a liability that needs remedy.

Continue reading

No Interest Too Small for Beneficiary Standing and Revocable Trusts

By: Gary E. Bashian*

“Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. ‘It is possible,’ says the gatekeeper, ‘but not now.’”

– Franz Kafka

As with any litigated matter, the question of Standing is ubiquitous in Surrogate’s practice. However, more so than in most civil litigation, questions surrounding an Estate or Trust beneficiary’s right to bring suit is one that takes on many nuanced forms, and is seldom answerable independent of the particular facts and circumstances which frame the matter at bar.

Continue reading