There are numerous and diverse matters that are presented to the Surrogate’s Court for resolution. In the Manhattan Surrogate’s Court, the Queens Surrogate’s Court and the Brooklyn Surrogate’s Court, just to name a few, cases are presented regarding a variety of estate administration and estate settlement controversies. A review of some recent Court decisions provides insight into these disputes. Will of Ida Seals was decided by Erie County Surrogate Barbara Howe on March 10, 2014. This case involved a petition by the niece of a decedent to have the Court declare that a son of the decedent who was a named beneficiary in her Will was deceased since the son had been “absent” or not heard from since in or about 1980. New York Estates, Powers and Trusts Law (EPTL) Section 2-1.7 entitled “Presumption of death from absence; effect of exposure to specific peril”, allows the Court to presume that a person is deceased under certain circumstances. The Surrogate refused to invoke the presumption and to find that the son was deceased. Instead, the Court found that the petitioner failed to sufficiently demonstrate that a diligent search was performed to provide a substantive basis for presuming the son’s death. The petition was dismissed without prejudice for a later determination during the proceeding settling the fiduciary’s account.
Testament of Raffe is another recent case which was decided by Nassau Surrogate Edward McCarty III on March 7, 2014. In Raffe the objectants to an accounting filed by a testamentary trustee asked the Court for an Order restraining the trustee from providing or using any additional trust funds to operate a home heating oil business that was owned by the trust. The objectants asserted that the business was a failure and that the trust funds were being wasted. After considering the various factors involved to support a preliminary injunction, the Surrogate refused to allow the restraint. The Court found that any monetary harm could be rectified by a surcharge against the trustee and that economic loss that could be recognized in terms of money damages would not constitute the irreparable harm needed for an injunction. Continue reading →