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In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.

When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away.  Testators can also choose to nominate an executor who would be responsible for managing their estate.

Wills are legally enforceable documents, and courts have a duty to uphold their terms.  Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.

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In In re Steward the court considered whether the Surrogate’s Court erred in denying a motion to suspend co-administrators where the co-administrators were unable to get along.

SCPA § 711 describes the circumstances under which a court can  revoke letters of administration:

  • Wasted assets. The court has the authority to suspend an administrator if the administrator has wasted estate assets by mismanaging estate property, making illegal investments, by misapplying estate assets, or by otherwise injuring estate property.
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In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020.  On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent.  Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months.  They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings.  In this case, the delay related to an unresolved jurisdictional issue.

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In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000.  The estate had an income of over $3,000,000 from its real estate holdings.  Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711.  As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties.  In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by  22 NYCRR § 207.20.

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In In re Holmgren the petitioner, Philip Holmgren, submitted his sister’s will for probate.  Even though the will was not contested, because of the novel circumstances surrounding the execution of he will, the Surrogate’s Court, Queens County issued a written opinion as to whether a will that was executed under the temporary COVID-related procedures was legally sufficient.

Requirements for executing a will in New York

For a will to be valid in New York, the law requires that it must be executed in a specific way.

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In In re Ryan the petitioner asked the Surrogate’s Court of Broome County to admit a will to probate that was executed under the requirements of special rules that were put into effect to make sure that social distancing requirements where followed.

Requirements for executing a will in New York

In New York, for a will to be valid, it must be executed according to the requirements of New York law.  This means that the will must be signed and witnessed.

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In In re Koutsakos the petitioner asked the Surrogate’s Court of Queen’s County to admit a handwritten will to probate.  The will was dated March 18, 2020.

Requirements for executing a will in New York

For a will to be valid in New York, it must be written and executed in the manner required by New York. The rationale for strict requirements is to prevent fraud.

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On August 12, 2018, Kranz-Marks passed away. She left a will dated June 9, 2015.  However, the first page of the will had the handwritten word “VOID.” It also included the followed handwritten statements:   “Everything will be left to my three daughters: Jessica, Emily, and Erica Marks ONLY!!!”  and “My previous will to be executed is with my Aunt Janine Kranz in Wading River.”  The testator’s signature was below the statements.

The petitioners argue that the writing on thee 2015 will constitute a revocation of that will under EPTL § 3-4.1(b). They sought to administration of the estate under the laws of intestacy rather than probating the 2015 will. In addition, a 2014 will was submitted to the court by another party along with a petition for that will to be probated.

Among other things, the Surrogate’s Court of Orange County had to determine  whether the 2015 will was effectively revoked.

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In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit.  On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement.  The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death.  The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both.  The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is  added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence.  That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

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In this case, during a 1404 examination of the two execution witnesses, Surrogate’s Court had to determine if the decedent’s will had been properly witnessed given the unusual execution ceremony.  For a will to be valid in New York, it must be properly executed. This means that the will must be signed at the end by the testator or at the direction of the testator in their presence.  It must also be signed by at least two witnesses in the presence of the testator.  Under SCPA § 1404, before a will can be admitted to probate, at least two of the attesting witnesses must appear in court and be questioned by the court.

In Matter of William Ryan the testator was in poor health at the time his will was drafted.  In addition, because of COVID, there were restrictions on gatherings.  As a result, attorneys found themselves conducting business differently in they would under pre-pandemic conditions.  The original plan was for the will to be executed in the parking lot of the office of the attorney who drafted the will.  However, Ryan’s conditioned worsened before that happened, and he was hospitalized.  The hospital had implemented strict rules to minimize the spread of COVID.  As a result, guests were not allowed to visit patients.  In order to execute the will, a hospital social worker had to assist.

The social worker delivered the will to Ryan and was present when he signed it.  The video feature of a cell phone was used along with a computer at the attorney’s office so that the attorney and the witnesses could be “present” when Ryan signed the will.  Immediately after Ryan signed the will, the original was driven back to the attorney’s office where the two witnesses executed the attestation clause and the witness affidavit. The attestation clause and affidavit had been stapled to the original will in a will.

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