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Estate Litigation Tidbits Spring/Summer 2011

By: Gary E. Bashian



In 2008, Petitioner submitted for probate the Last Will and Testament of Decedent, which was executed in 1994. Oddly, the affidavit of attesting witnesses was not executed until 1997. Petitioner was named executor, and the sole beneficiary. At the time of probate, Respondent, Decedent’s brother in law, made no objection. In 2009 Respondent attempted to transfer real property located in Lake Placid, NY, the primary asset of the Estate. While conducting discovery related to that transfer, Respondent uncovered evidence that credibly questioned the due execution of the Will.

Thereafter, Respondent moved by Order to Show Cause to have the Petitioner’s authority as executor suspended, and the Probate Decree vacated. Petitioner cross moved in opposition, and for an order of protection regarding further discovery regarding both the Estate and the real property action.

The Surrogate’s Court allowed Respondent to continue discovery regarding the execution of the Will, reserved judgment pending discovery regarding vacating the Probate Decree, and denied the Petitioner’s request for an order of protection. Petitioner appealed.

The Appellate Division, Third Department ruled that SCPA 1404 has been interpreted by the Court of Appeals to require that a decree of Probate must be vacated before discovery is allowed. “Thus, that portion of Respondent’s motion seeking discovery should have been denied absent a determination that a respondent was entitled to an order vacating the decree of probate.”

The Surrogate was allowed to then determine if the decree for probate should have been vacated, and the Executor was left with limited letters until such determination was reached.


In the Matter of the Estate of Kelsall (79 A.D.3d 1234; 3rd Dept. 2010)






The issue recently determined by the Bronx County Surrogate’s Court involved a post note of issue demand by an administratrix for an examination before trial in an effort to establish evidence to disqualify Decedent’s spouse from sharing in the settlement of a wrongful death action.

Previously, the Surrogate had ordered a scheduled deposition of administratrix days prior to a pretrial conference. Administratrix requested an adjournment of the pretrial conference in order to schedule the deposition of the spouse. Spouse refused to appear as the note of issue and certificate of readiness had already been filed. On the day of the pretrial conference, administratrix moved the Court for an order compelling deposition of the spouse.

As the SCPA is silent regarding post note of issue depositions, the CPLR governed this issue. The CPLR directed the Surrogate to the Uniform Rules for Trial Courts (22 NYCRR 202.21(e)), that states within 20 days of the filing of the note of issue and certificate of readiness an Affidavit can be submitted showing that a party is not ready for trial. Alternatively, 22 NYCRR 202.21(d) allows for post note of issue discovery where unusual or unanticipated circumstances develop which require additional discovery in order to prevent substantial prejudice to a party.

Recognizing that the spouse never moved to strike the note of issue even though his own discovery demands had not yet been satisfied, that adminitratrix’s own deposition was not scheduled until after the filed of the note of issue, and since an examination before trial of the spouse was clearly material regarding the allegation of abandonment, the Surrogate found unusual circumstances which would cause substantial prejudice in the event that the spouse was not deposed.           Accordingly, the motion was granted and the examination before trial was allowed.


Matter of Placido  (2010 NY Slip Op 51596(U) Bronx County Surrogate’s Court)






In order to comply with  the requirements of obtaining letters of administration, Petitioner obtained an order allowing for substituted service upon Decedent’ s alleged spouse.

Attempts to serve the alleged spouse in compliance with the Courts’ order were thwarted as it appeared that the alleged spouse had vacated his known residence, and could not be located.

Subsequently, the Court issued Letters of Administration to Petitioner after waiving the requirement of service upon the alleged spouse pursuant to SCPA 1003(4), but directing that the alleged spouse be made a party to any future proceeding, including an accounting, and be served accordingly.


Matter of Taylor (NYLJ 10/15/10, 29, col. 4. Bronx County Surrogate’s Court)









The Matter of DiMarco is yet another reminder to practitioners that it is well within the Court’s discretion to analyze and reduce attorney’s fees where appropriate. As the Kings’s county Surrogate pointed out: 1) reasonable compensation for attorneys for uncomplicated Estates of moderate size is 5% of the gross Estate, 2) when an attorney receives a commission as well as legal fees, the court will consider both when determining what reasonable compensation is, and 3) a fiduciary serving as the Estate’s attorney can not be compensated twice for the same services.

Petitioner attorney submitted two fully documented affirmations of services for attorney’s fees and Executor’s commissions, which totaled 8.25% of the gross Estate.

Upon objections of the NY Attorney General regarding attorney’s fees and accountant’s fees, the Court considered if the attorney’s fees and commissions taken together were excessive.

The Court found that services attributed to attorney’s fees were in fact executorial duties that can not be compensated at an attorney’s rate, as they are compensated with Executor’s commissions. The Petitioner’s attorney’s fees which were attributable to executorial tasks were denied, reducing the attorney’s fee by over 22 thousand dollars. As almost the entirety of the Estate passed to charities, the funds Petitioner sought to be approved for accountant’s fees were not allowed, and were included as part of the attorney’s fees since the accounting tasks, according to the Court, presented no complicated or unusual services which would warrant accounting fees separate and apart from the fees paid to the attorney.


Matter of DiMarco (NYLJ 10/4/10, 27 col. 6 NY County Surrogate’s Court)






Respondent, the surviving spouse of Decedent, moved for Summary Judgment in opposition to Petitioner’s turnover proceeding, demanding the return of real property or the proceeds of the sale thereof, asserting that she was the rightful titleholder to the land in question.

Respondent argued that the property passed to her by operation of law, as a deed recorded in 2003 indicated that she and Decedent were owners as husband and wife. In rebuttal, Petitioner drew attention to a question of fact regarding chain of title, specifically, that Anthony J. Serpico, Jr., not Sr., took title to the property in 1995, eight years prior to the deed relied on by Respondent, making any transfers subsequent to 1995 by the Decedent defective.

The Court agreed with Petitioner that a triable issue of fact existed as pertained to the validity of transfers of title by the Decedent post 1995. Accordingly, Summary Judgment was denied, the matter was restored to the calendar, and the action allowed to proceeded.


Matter of Serpico (NYLJ 10/13/10; 30, col. 2. Richmond County Surrogate’s Court)







Decedent died intestate in 1995. As of 2010, almost no assets had been distributed from the Estate to the beneficiaries. A petition to compel an accounting was granted, and both administrators of the Estate were made to account to date. During the course of the accounting proceedings, immediately prior to a Court ordered SCPA 2211(a) examination, one of the Co-Administrators made a motion seeking, inter alia, a protective order against the 2211(a) examination and disclosure as to whether the Court has personal, social, financial or political ties with the Law Firm representing the opposition.

Sua sponte, the Court ordered a hearing to determine if movant’s attorney engaged in frivolous, and therefore sanctionable conduct as defined in NYCRR 130-1.1, when he sought a protective order against Court ordered discovery and when making a claim of bias on behalf of the Court. The Court noted that “Ignoring discovery directives contained in a prior court order can constitute frivolous conduct under 22 NYCRR 130-1.1 [c], (citation omitted). While it is true that the bringing of this motion automatically suspended disclosure pending the determination of the application for a protective order, it does not in any way immunize Mr. Foster from the consequences of bringing a last minute motion to avoid court ordered disclosure (citation omitted).” Furthermore, “Sanctions may be imposed against an attorney for making baseless accusations of bias on the part of a court.”

Accordingly, the Court calendared a sanctions hearing, and ordered that the SCPA 2211(a) examination be conducted on a date certain.


Matter of Feelings (28 Misc. 3d 1236(A). Kings County Surrogate’s Court)






Decedent’s executors, his attorney and companion, sought to quash Objectant’s subpoena demanding the financial records and deposition of an attesting witness to a Will.

The motion to quash was based on three grounds, 1) that it was overbroad and not limited in scope regarding time period, 2) that the personal financial records of a person not named under a Will are not relevant to the Objectant’s claims and that issuance of the subpoena was an effort to harass and intimidate the witness, and 3) the issuance of a subpoena without leave of the Court is was a violation of SCPA § 1404 (4) as a § 1404 deposition of the witness had already taken place.

The Court agreed on all three points. The Subpoenas were found to be overly broad as they did not limit the scope in time for records demanded, no nexus between the objections and the demand for financial records was made, and that leave of the Court would in fact be necessary to issue a valid subpoena to an individual who has already undergone SCPA 1404 examinations.         Accordingly, the motion to quash the subpoenas was granted.


Matter of Moles (NYLJ 11/4/10; 26 col.2. NY County Surrogate’s Court)





Pursuant to SCPA §1404, the deposition of witness Number 1, an attorney draftsman/attesting witness was conducted. The deposition of witness Number 2, the second attesting witness to the instrument, was scheduled for the same day, however the witness could not be located at that time, and therefore could not offer testimony.  The proceeding was adjourned without a date while counsel attempted to locate witness Number 2. When witness Number 2 was located, the depositions were rescheduled.

Petitioner noticed the deposition of witness Number 2, but Respondent’s attorney allegedly did not receive a copy of the subpoena, nor were they consulted about their availability on the noticed date. Unaware of the deposition, Respondent’s counsel did not appear. When contacted by Petitioner from the deposition regarding their whereabouts, Respondent’s counsel indicated that they could not attend the examination at that time and requested an adjournment.  Nevertheless, Petitioner’s attorney conducted the examination of witness Number 2.

Subsequently, Petitioner argued that Respondent waived their right to examine witness Number 2.

The Court did not agree. Petitioner had the burden to produce the witness for examination, and unilaterally set a date for the examination with out confirming the availability of Respondent’s counsel. In this circumstance, Respondent made no waiver by their failure to appear for the examination.


Matter of Serant (NYLJ 11/23/10; 33 col.3. Queens County Surrogate’s Court)

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