Tag: Practice and Procedure

Summary Judgment in a Contested Accounting Proceeding – Disposing of Meritless Objections.

Courts often use the term “punctilio of honor” to describe the high level of care and attention required of a fiduciary. The fiduciary must always act cautiously and carefully. But even the most careful fiduciary may still encounter an objection to her actions. There may be a disgruntled family member looking to harass the fiduciary or a party looking to squeeze the estate for some extra cash. Whatever the motive behind the objection, the “punctilio of honor” standard creates a low burden for a party to contest the account. Thankfully, the fiduciary may move for summary judgment to dismiss meritless objections in a contested accounting proceeding.

The summary judgment standard is the same as in any other case. The standard is found in CPLR 3212 and outlined in Zuckerman. First, the fiduciary must establish her defense sufficiently to warrant the court as a matter of law to direct judgment in her favor, and she must do so by tendering evidentiary proof in admissible form (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the fiduciary meets this burden, the burden shifts to the opposing party to show facts sufficient to require a trial of any issue of fact (see CPLR 3212 [b]; see Zuckerman, 49 NY2d at 562).

In terms of practice, the fiduciary satisfies her initial burden by showing that the account is complete and accurate (see Matter of Assimakopoulos, 2017 NY Slip Op 32821[U] [Sur Ct, New York County 2017]). This is often done by submitting the account with an affidavit attesting to its accuracy (id.; see Estate of Curtis, 16 AD3d 725 [3d Dept 2005]). The fiduciary should therefore submit the pleadings, the account, and the affidavit in support of the account. To avoid any doubt, the fiduciary should also submit additional affidavits addressing each specific objection to the account and tender sworn testimony and other exhibits in support of her position. This will provide the fiduciary with the best chance of success on the motion.

If the fiduciary meets her initial burden, the objectant will have to tender admissible evidence to establish that the amounts set forth in the account are inaccurate or incomplete (Estate of Curtis, 16 AD3d at 726; Matter of Assimakopoulos, 2017 NY Slip Op 32821[U] [Sur Ct, New York County 2017]). This procedure smokes out the weak objections from the strong ones and requires the objectant to prove that each objection is strong enough to justify conducting a trial.

As part of the motion strategy, the fiduciary should always serve the motion with enough notice to permit her to demand that answering papers be served at least a week before the return date. This will provide the fiduciary with a chance to review the answering papers and provide a reply. The fiduciary’s reply should highlight the lack of evidentiary support behind the objections and the golden rule set forth in CPLR 3212 and Zuckerman that “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” for an objectant to withstand dismissal (Zuckerman v City of New York, 49 NY 2d at 562).

Goodbye, objections. Goodbye.

Renunciation Of An Inheritance Part 1

Most people welcome receiving an inheritance, but there are times when an inheritance causes problems for the beneficiary. Some beneficiaries want to avoid receiving their inheritance for tax purposes, while others may want to avoid paying a creditor. “Motives or reasons for the renunciation have no bearing on this statutory right, as long as no fraud or collusion is involved.” Matter of Oot, 95 Misc 2d 702, 705 (Sur Ct, Onondaga County 1978).    

Matter of Rosenberg, 2016 NY Misc LEXIS 261 (New York County, January 27, 2016) is an interesting case that involved renunciation for estate tax purposes. In this case, the decedent Paul Rosenberg, a Jewish art collector and dealer who lived in France, owned two paintings by Henri Matisse. In 1940, the Nazis confiscated the paintings. In 2012, the paintings were discovered and determined to belong to the Rosenberg’s who had immigrated to New York. The paintings were valued at over $12 million.

Paul Rosenberg died in 1959. Paul bequeathed half of his residuary estate to his son Alexandre or, in the event that Alexandre did not survive him, to Alexandre’s children. Alexandre died in 1987, survived by his wife and children. Alexandre bequeathed his residuary estate to his wife or, in the event that she disclaimed her interest, to a Marital Trust for her benefit. Alexandre’s wife did indeed disclaim, and as a result, his children were to receive any assets that pass as part of his residuary estate.

Alexandre’s wife petitioned the Surrogate’s Court to permit Alexandre’s estate to renounce an interest in the newly discovered paintings and any works of art discovered in the future that would be found to be assets of Paul’s estate. Her reason for the renunciation was to spare her children the cost of estate tax that would be payable otherwise. EPTL 2-1.11 (c)(2) gives the court discretion to extend the time to file and serve a renunciation upon a showing of reasonable cause. Here, the Court held that the extraordinary circumstances of this case warranted its allowance to extend the petitioner’s renunciation of assets found in the future.  

Subsequently, in 2014, after the Rosenberg family learned about the discovery of several stolen pieces of art held by a German citizen, the Court granted renunciation to the estate of Alexandre. 

Renouncing a property interest for purposes of avoiding creditors is also permissible. In Matter of Oot, Patricia Hoopingarner worked for William Prescott, the petitioner, as a receptionist-bookkeeper from 1972 to 1976. In 1976, the Prescott discovered that Hoopingarner had misappropriated over $40,000. Hoopingarner signed a confession of judgment which was filed in the Clerk’s office. In 1978, her mother, Marion Oot, died and Hoopingarner was named as a legatee under the will.

As long as the beneficiary has not accepted the disposition, a legatee has a statutory right to renounce any gift made by a will (EPTL 2-1.11). Hoopingarner filed a renunciation under the will to avoid paying the judgment against her. Prescott sought to set aside the renunciation as a fraudulent conveyance. The Court held that “the fact that the renunciation of a legacy might frustrate the claims of creditors is of no consequence if the statutory renunciation procedures have been meticulously followed.” Id. at 706.

By Jacque K. Vincent, JD

Renunciation Of An Inheritance Part 2

What happens when a person renounces a bequest?

Filing a renunciation has the same effect with respect to the renounced interest as though the renouncing person had predeceased the testator unless a provision relating to a possible renunciation is included in the will. In other words, if you decide to renounce your bequest, you will be treated as if you died before the grantor did, and your share is redistributed according to the terms of the will.

In Estate of Cooper, the decedent left residuary shares of his estate to his three daughters. He did not provide any provision relating to a possible renunciation of a bequest in his will. When one daughter renounced her bequest, that portion of the estate went to her children. Estate of Cooper, 73 Misc 2d 904, 906 (Sur Ct, Onondaga County 1973).

Because the daughter’s renunciation of the bequest was treated as if she had predeceased her father, the disposition vested in her surviving children, per stirpes, in accordance with the antilapse statute.

The antilapse statute provides that where a testator has made bequeaths to his issue or his siblings, and the beneficiary dies before the testator, the deceased beneficiary’s disposition vests in his surviving issue. EPT § 3-3.3.

By Jacque K. Vincent, JD

Renunciation Of An Inheritance Part 3

Unintended Consequences of Renunciation

One issue to note is that renunciation can negatively impact a distributee’s eligibility for Medicaid benefits or other public assistance. In assessing need and eligibility, the Department of Social Services will consider any financial asset or resource the applicant may immediately or potentially have available. Courts have held that a recipient of public assistance is obligated to utilize all available resources to eliminate or reduce the need for public assistance. Although when a distributee renounces his inheritance and the disposition never vests, the Courts still allow Social Services to consider the inheritance as a potential resource for the applicant when determining eligibility. Molly v Bane, 214 AD 2d 171, 176 (2d Dept 1995).

Something else to be aware of is that proceeds recovered from an action for wrongful death cannot be renounced. Renunciation is limited to the distribution of testamentary or administration assets. Since proceeds from a wrongful death action are not passed through a testamentary instrument, renunciation is not applicable. In re Estate of Summrall, 93 Misc 2d 420 (Sur Ct, Bronx County 1978).


By Jacque K. Vincent, JD

Can a Felon Serve As A Fiduciary?

SCPA § 707 sets forth a list of ineligibles – those persons automatically disqualified from serving as a fiduciary in Surrogate’s Court. The statute is clear: felons cannot serve. It does not matter when the felony occurred, the age of the offender at the time, or the type of crime committed. All felons have been branded as unsuitable to manage the affairs of others in Surrogate’s Court.

Notwithstanding the prohibition, felons have argued that exceptions exist and that a certificate of relief from disabilities renders them eligible. This is based on language in the Correction Law providing that a certificate may relieve a felon from “any forfeiture or disability … automatically imposed by law by reason of [the] conviction” (Correction Law § 701 [1]). This statute generally trumps “any other provision of law” to prevent the “automatic forfeiture of any license…, permit, employment, or franchise, including the right to register for or vote at an election, or automatic forfeiture of any other right or privilege” (Correction Law § 701 [1]).

Despite this language, the Surrogate in Matter of McNair was not convinced. There, the court concluded that a certificate does not alter the mandate of SCPA 707. According to the court, the Correction Law “merely affords [a felon] the privilege of obtaining gainful employment” and that a felon “remains ineligible to hold public office, a position for which society’s trust is rightfully expected” (Matter of McNair, 16 Misc 3d 1102[A], 2007 NY Slip Op 51223[U] [Sur Ct, Dutchess County 2007]).

The conclusion reached in the McNair case appears to be a minority view. In Matter of Pullman, for example, the Second Department held that the certificate indeed removes the automatic disqualification (89 AD2d 608 [1982]; Matter of Bashwinger, 92 Misc 2d 716 [Sur Ct, Albany County 1978]; see also Matter of Smith, 14 Misc 3d 1232[A] [Sur Ct, Bronx County 2007]).

Even these cases, however, recognize that a court may still deny the appointment of a felon in its discretion, and that a certificate does not preclude the court from denying the appointment under SCPA 707 (1) (e), which renders persons ineligible for other reasons, including dishonesty (see Matter of Pullman, 89 AD2d at 608; see also Correction Law § 701 [3] [permitting any judicial authority from relying upon the conviction as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege]).

The Surrogate in the McNair case, for example, relied on SCPA 707 (1) (e) as an alternative basis for its decision. There, the felon was a former attorney who had been convicted of grand larceny in the third degree and disbarred. The court found persuasive that at least two prior estates had allegedly suffered financial losses as a result of the felon’s dishonesty.
Similarly, in the Pullman case, the court concluded that the felon was ineligible as a “dishonest” person despite the certificate. He was indebted to the estate, had exercised undue influence over the decedent and commingled trust funds in another case, and had no less than 13 unsatisfied judgments against him.

So, to answer the question posed above – yes, convicted felons may serve as fiduciaries, but only the honest ones.

How To Prepare For Your 1404 Exam- Drafting Attorneys

LOCATE THE ESTATE PLANNING FILE

Many experienced estate planning attorneys assert that estate planning files of law firms should not be purged or destroyed. They often agree that destruction or purging of planning files is only allowable after the estate is closed. Additional factors to consider are expiration of the applicable statute of limitations for potential legal malpractice claims and the law firm’s policy on document and client file retention.
Minimally, the request for a 1404 examination requires that the attorney draftsperson should have a litigation hold immediately in place. A prudent practice is that on learning of the decedent’s death the hold should be put in place. The hold must include all electronically stored information. This will protect the attorney draftsperson and the firm from an embarrassing or harmful circumstance where the file becomes lost or destroyed. It is also an easy way to bolster credibility.

Notes which pertain to the client’s instructions given to the attorney draftsperson are critical. All prior drafts of the instruments prior to execution should be located. The correspondence section of the file and the billing records should be located as well.

ASCERTAIN THE WHEREABOUTS AND STATUS OF SUBSCRIBING WITNESSES

The court will rely on the proponent and counsel to produce the witnesses. Cooperation is key. Most non-attorney witnesses naturally will look to avoid coming to court. Even more so, they seek to do little to nothing in preparation for their testimony. It is unwise to leave the arrangements to the last minute. In some instances, a witness cannot be found. We have had experience with cases involving deceased supervising and drafting attorneys. The details must be considered before coming to court. No judge likes to be surprised or confronted with a circumstance that causes delay.
Minimally, the witnesses should be provided with a copy of the will, together with any affidavit that the witnesses signed as subscribing witnesses.

DO YOUR HOMEWORK PRIOR TO TESTIFYING

In order to fulfill the obligation to the testator, the supervising attorney has a duty to prepare for the examination. The obligation of the attorney that drew the will continues through the examination. The examination, particularly the attorney’s testimony is an opportunity to prove the client’s will by showcasing the great care and attention that was provided to the decedent’s legal work.

The supervising attorney and the subscribing witnesses must read the will and any self-proving affidavit in advance. The contents should be well known and understood by the attorney and ideally the witnesses before taking the stand. Incredibly, attorneys continue to testify that they are unfamiliar with the contents of the will, cannot recollect the plan or worse, have been too busy to re-read the will and the affidavit.

Many highly skilled estate planning attorneys find their work reduced to confusing and broken-down ruble where they have not prepared. Many attorneys fail to read their own file before taking the stand. They are unprepared to address or explain contradictory notes or case sensitive issues. Some fail to produce the entire file when required to do so. A rambling effort to explain away non-compliance does not bolster confidence in the will execution. These circumstances of muddled testimony do not escape the court’s attention.

False confidence causing a lack of preparation often leads to a highly adversarial examination with the drafting attorney coming across to the court as highly defensive, perhaps arrogant and in some instances lacking credibility. Adept counsel for objectants will immediately sense the defensiveness and exploit it heavily in both the exam and in further proceedings with the court and perhaps a jury.

Amazingly, attorneys continue to testify concerning the subject of due execution without regard for what the statute actually says. While the statute itself is somewhat forgiving in terms of the sequence of events in the signing, it does prescribe the elements which are required to make a valid will.

An effort should be made to refresh recollections. This can be accomplished in several manners. If the preparation is undertaken with a degree of seriousness and professionalism, the entire file and the notes should help greatly. There may be other law firm records, including time and billing entries that can greatly aid recollections. Colleagues are often able to recall some helpful details about particular clients as it is often the case that clients have contact with more than one person in a firm.

Understanding Discovery in Probate Proceedings: Putting the Pieces Together

As explained previously, you need to be familiar with the rules of procedure to successfully play the litigation game in Surrogate’s Court. The rules can be much more complex than those applicable in the Supreme Court.

As a prime example of this, consider the rules governing discovery in Surrogate’s Court. To understand them, you need to first identify the type of proceeding at issue and then determine if the Surrogate’s Court Procedure Act (“SCPA”) contains any specific rules of its own.

SCPA Sections 1404 and 1410, for example, contain specific rules that authorize pre-objection discovery in probate proceedings. They permit parties to depose certain witnesses prior to the filing of objections, generally the attesting witnesses and the drafting attorney. They also permit the party conducting the examination to obtain documents from parties and third parties of all relevant matters which may be the basis of objections to the probate petition. Section 1404 also requires the estate to pay for the cost of these examinations if they occur prior to objections.

If objections are filed, the parties may seek to engage in post-objection discovery under Article 31 of the Civil Practice Law and Rules (“CPLR”), as applicable to probate proceedings by SPCA 102. SCPA 1404, however, limits a parties’ right to re-examine the same witnesses examined during pre-objection discovery.

Parties must also be familiar with Rule 207.27 of the uniform rules for the Surrogate’s Court. This rule is referred to as the so-called “3-2 rule”. Absent special circumstances, the 3-2 rule limits the parties’ rights to obtain discovery in probate proceedings to three years before and two years after the decedent executed the will (or up until the decedent’s death, if sooner).

To make things even more confusing, you will need to review the case law interpreting the 3-2 rule. By its plain language, the rule appears to be limited to only post-objection depositions. Section 1404 also expressly provides the party conducting a pre-objection examination with “all rights granted under [CPLR] article 31 … with respect to document discovery.” Nevertheless, the rule is drafted poorly. Given the confusion, a number of cases have decided to apply this 3-2 rule uniformly to all discovery conducted in probate proceedings, including pre-objection discovery. Parties must therefore familiarize themselves with the case law on this issue and ascertain whether the Surrogate in their case has rendered any prior decisions interpreting the rule. Parties must also review the case law to ascertain whether special circumstances exist to expand the scope of discovery.

How the Safe Act Impacts the Transfer of Firearms In an Estate

Inheriting a firearm can be a complicated process. A fiduciary of an estate cannot just give the firearm directly to an heir without the risk for potential criminal liability. Unlike other personal property, passing firearms on to a loved one after the death of the owner has its own unique rules and can be a challenge to the estate’s fiduciary if not specifically addressed during the estate planning stage.

New York’s Secure Ammunition and Firearms Enforcement Act, better known as the SAFE Act, can create the risk of criminal liability for executors and administrators as well as for the estate’s heirs where the parties are unaware of the rules.

Pursuant to the SAFE Act, a fiduciary must lawfully dispose of the firearm within fifteen days after the death of the owner. If the fiduciary is unable to transfer the firearm to the heir within fifteen days, the firearm must be surrendered to a law enforcement agency. The law enforcement agency will hold the firearm until the heir is licensed or otherwise permitted to take possession. However, if the agency does not receive a request to deliver the firearm within one year of the delivery, the firearm will be deemed a nuisance and destroyed (NY Penal Law § 400.05[6]). Fifteen days is a relatively short amount of time in which to make the transfer because a fiduciary cannot lawfully transfer or dispose of a firearm until he has been appointed by the Court.

Before the firearm can be given to the heir, the fiduciary must (1) know that the decedent legally owned the guns; (2) know that the specific beneficiary of the guns may legally own a gun and (3) adhere to proper transfer procedures. The heir receiving the decedent’s firearm must hold a valid New York State gun permit. Illegal possession of a decedent’s registered firearm without following the statutory protocol for estate transfer to an heir is a misdemeanor, specifically, criminal possession of a weapon in the fourth degree (NY Penal Law § 265.01).

In addition to a state firearm permit, a federal background check is required for a firearm to be transferred. But there is an exception to his rule when it comes to transfers between immediate family members such as spouses, domestic partners, children and step-children (General Business Law § 898).

Contributed by Jacque K. Vincent, J.D.

Do I Need to Pay a Bequest if the Beneficiary Owes the Estate Money?

A fiduciary has a legal obligation to make distributions to the beneficiaries of the estate. But what happens when a beneficiary owes the estate money? Does the law permit the fiduciary to offset the bequest with the debt? Or does the fiduciary have to first make a distribution and then sue the same beneficiary to recover the funds to pay the debt?

As a practical matter, one would assume that an offset is permitted. However, at first blush, the EPTL and SCPA do not appear to address the issue. They provide a beneficiary with the right to compel payment. But they do not expressly provide that a fiduciary may assert defenses to payment (see EPTL § 11-1.5; SCPA § 2102 [4] [“A proceeding may be commenced to require a fiduciary … to deliver a specific bequest or property to a person entitled thereto or to pay a legacy…”]). The only defense in the statute appears to be the timing of the payment: under EPTL § 11-1.5(c), a beneficiary generally must wait at least seven months from a fiduciary’s appointment before demanding payment.

The procedural rules of the SCPA and CPLR nevertheless permit a fiduciary to file an answer and assert defenses when the beneficiary commences a proceeding to compel payment. The fiduciary therefore has an opportunity to explain to the court why the legacy a or distributive share should not be paid in whole or in part (see 6 Warren’s Heaton on Surrogate’s Court Practice § 75.03 [LexisNexis 2019]).

In the answer, the fiduciary should therefore explain that the beneficiary owes the debt and assert this as a defense to payment. This is often referred to as the right to equitable retainer and lien (see Matter of Van Nostrand, 177 Misc 1, 7 [Sur Ct, Kings County 1941] [placing equitable lien upon the beneficial interest of a trustee/beneficiary who had embezzled trust property]; Matter of James, 149 Misc 135, 135-138 [Sur Ct, Kings County 1933]).

This defense is well settled under the case law and rests on sound principles of equity (see Matter of Eaton, 282 App Div 32, 34 [3d Dept 1953]). It is based on “a fundamental equitable principle of surrogate law that no beneficiary may claim any distributive rights from an estate until he has satisfied all of his obligations to it” (Matter of Van Nostrand, 177 Misc at 7; Matter of James, 149 Misc at 135-138 [Sur Ct, Kings County 1933]; Matter of Flint, 120 Misc 230, 232 [Sur Ct, Westchester County 1923], affd 206 App Div 778 [2d Dept 1923]; Matter of Foster, 15 Misc 175, 177 [Sur Ct, Orange County 1895] [holding that a debt is considered an asset of the estate in the hands of the legatee and a satisfaction of the legacy to the extent of the debt]).

Can You Admit a Lost or Destroyed Will to Probate?

An estate practitioner may be faced with a situation where the original will of the decedent cannot be found after his or her death. Don’t worry, at least not just yet.  In such a case, SCPA 1407 provides the procedure for admitting a lost or destroyed will to probate. The first hurdle is to establish that the will has not been revoked.  However, this is no easy task.

“If a will, shown once to have existed and to have been in the Decedent’s possession, cannot be found after [his or her] death, the legal presumption is that the [decedent] destroyed the will with the intention of revoking it” (Matter of Demetriou, 48 AD3d 463, 464 [2d Dept 2008]). “The burden of proof is on the will proponent to show, by facts and circumstances, that the testator did not destroy the will with the intent to revoke it; mere speculation or suspicion is insufficient” (Matter of DiSiena, 103 AD3d 1077, 1078 [3d Dept 2013]).

We had the opportunity to litigate this issue at the Appellate Division, Third Department. In the case, the record contained evidence that the decedent had disinherited one of her sons in several wills and a revocable trust, including the most recent will offered for probate. The son had left the family business and created his own competing business. The decedent therefore left her estate (including the family business) to her remaining children who had worked for the family business and contributed to its growth. The decedent also twice fought the disinherited son in court, once to preserve her rights to remove him from her will and another time to prevent him from obtaining an interest in her business.

At the Surrogate’s Court, the disinherited son sought summary judgment dismissing the probate petition. The disinherited son argued that the lost or destroyed will created a presumption of revocation and that the record evidence was insufficient to overcome the presumption.

The Surrogate’s Court ruled in favor of the disinherited son and granted summary judgment dismissing the probate petition. The Surrogate held that the proponents of the will did not overcome the presumption, relying on the strong presumption of revocation.

On appeal, we did not dispute the heavy burden imposed on a proponent of a lost will. Rather, we focused on the record evidence and argued that there was sufficient evidence to create a question of fact on the issue.

The appellate court agreed with us and reversed the summary dismissal of the case (Matter of DiSiena, 103 AD3d 1077 [3d Dept 2013]). It determined that the record evidence amounted to more than mere speculation or suspicion about the decedent’s lack of intent to revoke her will. The record, for example, contained evidence of the prior lawsuits and the several wills of the decedent disinheriting her son. Evidence also existed that the decedent had her estate attorney store her codicil for her until her death. The decedent also met with her estate attorney in her hospital room shortly before her death to discuss further estate planning. At that time, she instructed her estate attorney to create an irrevocable trust gifting her remaining interest in the family business to the identical beneficiaries named in her prior wills and revocable trust. The decedent also signed a power of attorney appointing her three children other than respondent as her agents. An unsigned copy of the irrevocable trust documents, which expressly state that respondent is not a beneficiary, was included in the record, and the estate attorney indicated that decedent died before he was able to meet with her to sign the trust documents.

While the case turned out successfully for our clients, we would not have been able to win the appeal without a sufficient record. A practitioner should be familiar with the numerous relevant factors considered by the courts on this issue and develop the record in case to avoid summary dismissal of the probate petition.

To learn more about relevant factors and case law, feel free to contact the experienced trust and estate planning attorneys at TRK Law.