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.

Surrogate’s Court Discovery: Recent Cases Illustrate Changes Under Provisions of SCPA

Over the past 10 years, Surrogate’s Court judges across the state have made a series of decisions dealing with the discovery proceedings and “reverse” discovery proceedings under the Surrogate’s Court Procedure Act (SCPA) that provide valuable guidance on how the statutes are being interpreted and how attorneys should develop strategies on behalf of their clients.

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.

Summary Judgement Motion in a Will Contest: An Updated Proponent’s Perspective

By: Gary E. Bashian, Esq.

A motion for summary judgment, pursuant to CPLR § 3212 or § 3211, is a powerful procedural tool that can end litigation immediately.

Summary judgment can deliver a swift and decisive victory on the outcome of a matter. It can limit the issues, or award the broadest types of relief by ending all claims. When granted, it can avoid years of potential litigation and expense.

But for all of its versatility, drafting a motion for summary judgment can be a daunting and complex undertaking. The facts (hopefully none in question), and the applicable law in every matter can make it difficult to identify issues with no triable issue of fact. Communicating them clearly to the Court so as to show that summary judgment should be granted is the challenge.

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.

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.

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.

“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.

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.