It is a rare day that the Court of Appeals, New York’s highest Court, deals with trust and estate matters, let alone something as granular as the validity of an in terrorem clause. But speaketh they did, on April 17, 2025, in a lengthy opinion with a 13-page dissent to boot (Carlson v. Colangelo, 2025
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Does Counsel Have a Duty to Disclose to a Surrogate’s Court the Fact That Hearing Evidence That Counsel Proffers Has Been Generated by Artificial Intelligence?
On February 14, 2025, I will be speaking at the Suffolk Academy of Law’s annual Elder Law Update, addressing current developments in artificial intelligence (“AI”) that are relevant to trusts and estates practice, among other topics. In preparing for that presentation, I came across a recent Surrogate’s Court, Saratoga County, decision in Matter of…
Creative Writing: Reforming Wills and Trusts to Achieve Settlements
When reforming a will or trust, the Surrogate’s Court “changes the language of the will [or trust instrument] itself by the addition or deletion of words in an attempt to conform [the instrument] to the decedent’s intent” (Matter of Stahle, NYLJ, Jan. 23, 2002, at 32 [Sur Ct, Onondaga County]). Historically speaking, courts have been…
Abuse of Powers of Attorney
By Bret Cahn
A power of attorney (“POA”) allows a principal to assign their agent authority to make certain legal and financial decisions on their behalf. Because a POA can give an agent tremendous power over the principal’s affairs, claims of elder abuse in connection with a POA are common. While litigation concerning claims of abuse of a…
My Relative Has Been Missing for Years. What Do I Need to Do to Have That Relative Declared Deceased?
Suppose that a loved one has been missing for years, for no reason at all, and without contacting family or accessing any of his or her assets. Sadly, this scenario is one that many families have had to confront in New York State. This blog post addresses the steps that a missing loved one’s family…
The Admission of Remotely Witnessed Wills to Probate in New York
In 2021 and 2022, I wrote about Surrogate’s Court decisions that addressed the admission of remotely witnessed wills to probate in New York State. Since then, Surrogate’s Courts have issued at least two more decisions addressing the validity of remotely witnessed wills. I now write to provide an update about the validity of remotely witnessed…
Matter of Samuel – Artificial Intelligence Hallucinates and an Incapacitated Person Makes a Will
Artificial Intelligence (“AI”) made legal and mainstream news in 2023. In a highly publicized and widely discussed case, Mata v. Avianca, Inc., the United States District Court for the Southern District of New York sanctioned attorneys for citing to non-existent, fake cases generated by Open AI’s ChatGPT. Despite Mata’s stark warning to the…
The Probate Exception to Federal Jurisdiction – From Woitovich (Part 1) to Bulgari (Part 2)
For trust and estate litigators, the federal court experience invariably begins – and sometimes ends — with an analysis of the probate exception to federal diversity jurisdiction. Two recent Southern District cases examine the probate exception. Part 1 of this blog series introduces the probate exception and discusses an “easy” case; Woitovichv. Schoenfeld. Part…
SCPA 2103 Proceedings – A Fiduciary’s Right to Commence a Licensed Fishing Expedition
By Edward Baker
A discovery proceeding pursuant to SCPA 2103 may be commenced by any legal representative of the estate, including a preliminary executor or a temporary administrator. Ed Baker provides an overview of these proceedings in our latest post.…
Third Department Examines In Terrorem Clause
The recent opinion by the Appellate Division, Third Department, in In re Strom Irrevocable Trust III, 2022 NY Slip Op 01356, provides a cautionary tale to estate litigators who conduct SCPA 1404 examinations in the face of a trust instrument’s in terrorem clause. While in terrorem clauses are strictly construed, the Appellate Division found that…