Summary Judgment and Contested Accountings, not just for Petitioner anymore; Fiduciaries Beware

By: Gary E. Bashian, Esq.*


Both veteran and novice litigators alike know the potential and the pitfalls that come with moving for Summary Judgment pursuant to CLPR § 3212.

Arguably once hostile to its use, the New York Surrogate’s Courts appear to be increasingly receptive to Summary Judgment Motions in order to expedite litigation, eschew issues that can be addressed before trial, and frame issues for settlement negotiations.

An area of Estate litigation not regularly considered for Summary Judgment are Accounting proceedings, more specifically, an Objectant’s motion for Summary Judgment in an Accounting proceeding against an Accounting.

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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.

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Contemptible: Enforcing Money Judgments in Surrogate’s Court

By: Gary E. Bashian

JUDGE: Are you trying to show contempt for this court?

MAE WEST: I was doin’ my best to hide it.”

― Mae West.

            It seems to be undeniable that litigation in New York is on the rise. Market volatility, unemployment, ever increasing medical, healthcare, and living costs, the reasons for this explosion in litigated matters of all kinds are innumerable. The confluence of political, economic, and social turmoil that has made headlines across the globe over the past several years, and which has been felt especially hard here in New York, have prompted a downward pressure that has undeniably fueled this litigation boom.

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Court of Appeals Rules there is Privity between the Estate Planner and the Client’s Personal Estate Representative: But no Privity to Beneficiaries of the Estate

The traditional protection from legal malpractice claims afforded Estate practitioners by the doctrine of Privity has been relaxed by a recent New York Court of Appeals decision.

In the Estate of Saul Schneider v Finmann[i], a unanimous Court of Appeals has ruled that a personal Estate representative “stands in the shoes of the decedent,” and therefore has “the capacity to maintain a malpractice claim on the Estate’s behalf[ii].”

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Court of Appeals Overturns Itself in Hyde and Approves Allocating Estate’s Attorney Fees against Objecting Beneficiaries if Litigation against Estate is Vexatious

By: Gary E. Bashian, Esq.

The New York Court of Appeals, on June 29, 2010, resurrected what it has deemed was the original intent of SCPA § 2110, which governs the fixing and determining of attorney’s fees for services rendered to a fiduciary, devisee, legatee, or ­­­­­interested party, for legal services rendered to a fiduciary by an attorney in Estate matters. In the Matter of Hyde,[i] the Court considered if a fiduciary’s legal fees, which the Estate is obligated to pay, could be allocated to a particular beneficiary who filed objections in an accounting proceeding, or if such fees must be paid by the Estate as a whole, and thus all beneficiaries share in the cost equally.

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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.

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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.

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Successful Summary Judgment by Objectant in Contested Accounting Proceedings on the Rise

Accelerated Judgments are a perfect tool to best help balance the rights of litigants who seek access to the Courts, and the practical demands of managing a ballooning docket. As a result, if the facts warrant it, and if the damage done to an Estate by a fiduciary is so egregious, Surrogate’s Courts have become more receptive  to Trusts and Estates practitioners who move for Summary Judgment on behalf of an Objectant in a Contested Accounting proceeding.

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“Attorney Client Privity is Alive and Well Now, Even when You’re Dead”

Until quite recently, Estate practitioners were protected from Estate planning malpractice claims by Estate representatives by the often overlooked protections afforded by the doctrine of Privity. However, with their unanimous June 2010 decision in the Estate of Saul Schneider v Finmann[i], the New York Court of Appeals has relaxed this traditional safeguard and allowed for a new cause of action in the State against a negligent Estate planning attorney.

Although the Schneider decision represents a marked change from the prior bar on suits by personal representatives against a negligent Estate planning attorney, its rationale is far from revolutionary, and its rather narrow ruling endeavors to balance the interests of both Estate representatives and their legal counsel.

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Westchester County Bar Journal Estate Litigation Tidbits, Fall/Winter 2012

By: Gary E. Bashian, Esq. & Andrew Frisenda


The Bond That Never Was – And We Don’t Mean James

Greene v Greene involved a conversion action, in the Appellate Division Second Department, regarding government bonds allegedly gifted by Decedent to Plaintiff prior to death. Decedent had delivered to Plaintiff an envelope with instructions that it was not to be opened until after his death. Upon death, Plaintiff opened the envelope, and found a form and letter, witnessed by Defendant, regarding a change of ownership of the bonds from the Decedent and Defendant to Plaintiff and his daughter. Defendant’s refusal to turn the bonds over to Plaintiff inspired the action for conversion, which came before the Court on concurrent Motions for Summary Judgment.

As one would expect, the Court considered the elements of an inter vivos gift: intent to make an irrevocable, present transfer of ownership; acceptance; and delivery. Given these elements, the content of the letter enclosed with the change of ownership form only evidenced a future intent to transfer the property, and not a present transfer, Plaintiff could not establish that a gift had in fact been made. Furthermore, a testamentary disposition of the bonds could not be established as the instructions/letter included with the bond did not comply with the execution formalities required by EPTL 3-2.1.

As such, Plaintiff’s action for conversion was properly dismissed by the lower Court, and sustained by the Appellate Division.( Greene v Greene, 92 AD3d 838 [App Div 2nd Dept 2012]).

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