McCarthy Fingar LLP

•	Trust Contests: "Will Contests" take different forms. Trustees of a purported revocable inter vivos trust may claim title to property that would otherwise be disposed of under a Will or by intestacy (without a Will). In a relatively novel case, Matter of Hoffman, 6 Misc. 3d 1011A, 800 N.Y.S.2d 342 (Surr. Ct., Westchester 2004), the firm represented a client who was a beneficiary under her husband's Will of a membership in the New York Stock Exchange. However, even before the execution of his Will, the decedent allegedly created a revocable trust agreement for the benefit of a child of a prior marriage and allegedly transferred his NYSE seat to the trust. The NYSE seat had not been transferred to the trust through any assignment process but had been listed on a schedule of assets of the trust, with the following notation: "1. Membership in the New York Stock Exchange. The NY Stock Exchange does not permit registration of memberships in the name of trustees. Grantor and Trustees recognize this to be the case." Citing the provisions of a relatively new statute, EPTL 7-1.18, Bob and his partners, Deborah Yurchuk McCarthy and Frank W. Streng, sought summary judgment against the trustees strictly on the question of the effectiveness of the transfer, arguing, among other things, that the recital of the NYSE seat as an asset of the trust in a schedule was not enough to consummate the transfer. The Court agreed and dismissed this portion of the trustees' case.
•	Invalidation of Trust Amendment In Matter of Goetz, 8 Misc. 3d 200 ( Surr. Ct., Westchester 2005), the Surrogate's Court faced the fairly novel issue of whether an attorney-in-fact could use the authority conferred on her in a power of attorney form to amend a trust created by another person to grant to herself a limited power of appointment over the trust remainder. Pursuant to the terms of the trust in question, the grantor reserved to himself the right to amend or revoke its terms during his lifetime. Representing a client that was adversely affected by the trust amendment, Bob and another firm attorney, Gail M. Boggio, successfully argued that the attorney-in-fact had no authority to make the trust amendment and that the trust amendment was invalid. The Surrogate held, among other things, that although the terms of the subject trust gave the grantor himself the right to revoke the trust or amend its terms, it did not confer the same authority upon the grantor's agent or upon any other person.
•	Removal Proceedings – Contested Accounting Proceedings As an example of Bob’s work in the area of trusts and estates litigation, Bob and his partner, Frank W. Streng, had successfully representing a successor executor at both the trial and appellate levels in contesting the former preliminary executor’s accounting and obtaining, amongst other things, surcharges/damages against such former fiduciary in excess of $1,600,000 for such fiduciary’s improper disbursement of estate assets) Matter of Marsh, 265 A.D.2d 253 (1st Dep’t 1999) (unanimous affirmance of surcharge in excess of $1,600,000 and award of attorneys fees against former fiduciary in the amount of $250,000), motions for reargument and for leave to appeal denied, ___ A.D.2d ___ (1st Dep’t 2000); mot. for leave to appeal denied, 2000 N.Y. LEXIS 1705 (Ct. of Appeals, June 13, 2000), appeal dismissed, __ N.Y.2d __ (2000), writ of cer. Denied. ___ U.S. ___ (2001).
•	Challenge of Beneficiary Designation – Qualified Plan In Lefkowitz v. The Bank of New York as Preliminary Executor of Estate of Irene B. Marsh et al., 996 F.2d 600 (2d Cir. 1993), Bob and other lawyers at the firm had successfully represented a surviving spouse’s estate and successfully persuaded the court to invalidate a beneficiary designation on a qualified plan for the decedent’s child (to the exclusion of the decedent’s spouse) on the grounds that the beneficiary designation violated the spousal consent rules under ERISA.