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Testators often include provisions for successor executors to take over the responsibilities of administration in the event that the primary executor is not able or is unwilling to serve through the entire period of administration.  Naming a successor trustee also provides for a more efficient transfer of responsibility in the event the primary trustee steps down.

In the case of Stavin’s Will, there was a dispute related to the appointment of a successor trustee that had its roots after probate began when one of the two co-executed died.  The person named by the testator as the deceased co-executor’s successor petitioned the court for letters.  The remaining co-executor objected.

In 1969 E. Stavin died testate. In her will she named her two sons, C. Stavin and M. Stavin as co-executors of her estate.  The will also named the wife of C. Stavin as his successor executor if C. Stavin predeceased the testator. Similarly, the will named the wife of M. Stavin as his successor executor if he predeceased the testator. Neither son predeceased the testator. However, in 1970, four months after letters were issued, M. Stavin died.  For the next 5 years C. Stavin when about the duties of administering E. Stavin’s estate.

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In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a  party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed.  This means that all interested parties must be notified and given the opportunity to object to the will.  Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors.  In addition to listing the names of interested parties on the citation, the petitioner must send each of them a  notice known as “citation.”  This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings.  For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will.  However, anyone entitled to a citation can waive it.  On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate.  This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently.  Three days after the decedent passed away, his funeral was held.  At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it.  E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it.  After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver.  The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

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In a contentious probate case, the specific issue that is before the Surrogate’s Court is whether it should revoke the letters of the preliminary executor based on misrepresentations and negligence.

Under New York law, regardless of who a testator nominates in his (or her) will to serve as executor of his estate, the Surrogate’s Court will only appoint that person if he is qualified.  In order to serve as an executor, the person must be at least 18 years old, must be a U.S. citizen or legal resident living in New York, must not have been adjudicated to be incapacitated, and must not have been convicted of a felony.  After being appointed, the Surrogate’s Court can revoke an executor’s authority upon a finding that he is no longer qualified because of negligent or improper management of the estate, or that he is no longer capable of managing the estate. Examples of actions that would be grounds for removing an executor include stealing of assets from the estate, mismanagement of estate assets, failure to pay creditors, failure to timely account to beneficiaries, or substance abuse.

In the Estate of Haber, the Surrogate’s Court appointed E. Haber as the preliminary executor after a prior preliminary administratrix was removed by the court.  E. Haber is also the half-brother of the objectants.  In an effort to convince the court that E. Haber was not fit to serve as executor, the objectants cited several actions of E. Haber as grounds for removal.  In his place, the objectants wanted the court to either appoint one of them as executor, or a third party.

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The issue before the Surrogate’s Court is whether a copy of a subsequent will is sufficient to revoke a prior will and prevent it from being probated.

This matter is related to probating a will dated May 27, 1997, which is purported to be the last will and testament of decedent Harper. The petitioners are the executors named in the will, C. Harper and M. Harper. C. Harper is the decedent’s nephew, while M. Harper is his sister. The decedent has several distributees including his surviving spouse and children.

The will directs that the decedent’s personal property and real estate should be divided equally among his nephews, his sister, his 3 children. He left his surviving spouse the remainder of his estate. His will includes language that specifically disinherits any children born after execution of the document or any adopted children. The decedent’s surviving spouse and children filed objections to the will.

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NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

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In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

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In this case the Surrogate’s Court had to decide how to make sure that a testator’s overall testamentary plan remained intact where a portion of the will is determined to be invalid.

A. Dawe died on March 11, 2014. He was never married and never had children. He was survived by his two brothers, B. Dawe and R. Dawe. However, R. Dawe died in April 2014. The will was admitted to probate in September 2014, with B. Dawe being appointed as co-executor along with J. DeMuro, a friend of A. Dawe

In the will, the decedent made a specific gift to B. Dawe of his 13-year-old cat as well as $6000 to take are of her. The decedent was passionate about genealogy and spent a great deal of time researching Dawe family history. Decedent stated in his will that he is making no additional dispositions to his family. Instead, the decedent directed that the residue of the estate be transferred to the Dawe Family Trust that is to be used to continue and expand a genealogical website that the decedent created, and to create an archive of family genealogical data, photos and heirlooms. The will further provides that 21 years after the death of B. Dawe and his son, E. Dawe, the trust is to terminate and the remaining assets are to go to the Godfrey Memorial Library of Middletown, Connecticut.

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In this case the Surrogate’s Court considered the issue as to whether to entertain an objection to probate of a will 30 years after it was originally admitted to probate.

This case relates to the probate proceeding of the will of decedent Schnall. Schnall executed the will in 1976. She died in 1980. Bostwick, Schnall’s daughter, consented to probate. The will was admitted to probate in a decree dated November 13, 1980. In 2009, nearly 30 years later, one of the decedent’s grandchildren filed a motion to vacate the probate decree. The basis of the motion was that several distributees of the decedent had not been named in the probate petition. In 2010 the Surrogate’s Court granted the motion, finding in instances where jurisdiction was never obtained over a necessary party, the decree admitting the will to probate is void as to that party.

Nechin-Pescow filed an amended probate petition in 2013 and filed a second amended probate petition ion 2014. Bostwick objected to probate, arguing undue influence and a lack of testamentary capacity. Two grandchildren of Schnall, Beesmer and Elchoness, filed motions for summary judgment dismissing Bostwick’s objections. The Surrogate’s Court denied the motion.

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Matter of A.

NY Slip Op 05842

The co-executor of the estate petitioned the court pursuant to 2103 to determine if certain funds were withheld from the estate of A. This appeal is from 2 Surrogate Court orders brought by A.S. Those orders denied AS her cross-motion pursuant to CPLR 3211(a)(5) to dismiss the petition regarding two bank accounts. This appeal is dismissed. The second order superseded the first. One bill of costs is awarded to petitioner, payable to A.S.

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Ballasalmo died at the age of 95, leaving 2 daughters, Knuth and Ayers as her distributees. Petitioner, the decedent’s niece-in-law, submitted a document dated August 16, 2007, purportedly as Ballasalmo’s last will and testament. The will stated that Ballasalmo’s entire estate was to be divided between the petitioner and her husband. The decedent expressly disinherited her daughters. As to be expected, both daughters filed objections to the will. The bases for their objections include that the will was not properly executed, that the decdent lacked testamentary capacity, that it was a mistake, and that it was made under fraud and duress. In response, the petitioner moved for summary judgment dismissal of the decedent’s daughters’ objections.

Summary judgment dismissal is a strategy that allows the moving party to basically win the case without going through the time and expense of a trial. In order to win a summary judgment, the moving party must establish a prima facie entitlement to judgment. In this case, the petitioner mush show that the will was executed according to the requirements of New York law, and that the decedent had testamentary capacity at the time the will was executed. In support of her motion, the petitioner submitted a copy of the decedent’s will which includes an attestation clause as well as a contemporaneous self-proving affidavit. The petitioner also submitted the transcripts of the SCPA § 1404 examinations of the attorney draftsperson who also supervised the execution of the will and of two of the three attesting witnesses.

The evidence submitted established prima facie evidence that the will was properly executed and in statutory compliance.

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