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, Frank and his partners, Deborah Yurchuk McCarthy and Robert M. Redis, 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.
•	Will Contests Frank successfully settled a case in which the firm was retained to represent the Decedent’s brother, nephews and nieces in a Will/Trust contest. In this case, the Decedent executed a Will and Trust Agreement very close in time to that which proceedings for the appointment of a guardian had been brought in the Supreme Court [on grounds that the Decedent was not able to manage his property]. In another matter Frank, as counsel to the named executor, successfully defended against objections to the filing of a Codicil to the Decedent’s Will. At the trial level a jury upheld the Codicil to the Decedent’s Will and threw out objections made to such Codicil by one family member. On appeal, the trial judge’s refusal to set aside the jury verdict was upheld by the appellate court. Matter of Marsh, 236 A.D.2d 404 (2d Dep’t 1997)
•	Removal Proceedings – Contested Accounting Proceedings Frank effectively represented a beneficiary seeking the removal of a preliminary executor who had acted improperly in the administration of the estate. Matter of Marsh, 173 A.D.2d 336 (1st Dep't 1991), app. dismissed, 78 N.Y.2d 990, mot. for lv. to appeal denied, 79 N.Y.2d 751. That decision ultimately led to a surcharge/damage award against the removed fiduciary. 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), pet. for writ of cert. denied, ___ U.S. (2001). In this same estate, Frank and his partner, Robert M. Redis, successfully represented the 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 the former fiduciary in excess of $1,600,000 for the fiduciary’s improper disbursements of estate assets.
•	DNA Issues - Proving Inheritance Rights of Nonmarital Children In his representation of children who were born out of wedlock, Frank, as part of discovery, sought a court order directing DNA testing of the post-humously produced blood serum of the decedent. In an evolving area of the law, the Surrogate's Court conditionally permitted such testing, provided that proof existed of the decedent's "open and notorious" acknowledgement by the decedent of his children. Matter of Seekins, 194 Misc. 2d 42 (Surr. Ct., Westchester 2002). Later on in the case, a settlement was reached in which a DNA test was conducted and Frank's clients received their fair share of their father's estate.
•	Challenge of Beneficiary Designation – Qualified Plan Frank and other lawyers at the firm successfully represented a surviving spouse’s estate and 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. 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)
•	Interpretation of Decedent’s Will and Accounting Matters Frank and the firm represented children of a Decedent’s first marriage in litigation against the Decedent’s surviving spouse where the surviving spouse sought (unsuccessfully) to obtain an interpretation of her husband’s Will which would have effectively excluded the Decedent’s children as beneficiaries under the Will. Matter of Hickok, 140 Misc. 2d 650 (Surr. Ct., Orange 1989), affirmed, 158 A.D.2d 690 (2nd Dep't 1990), mot. for lv. to appeal denied, 76 N.Y.2d 712.
•	Allocation of Settlement of Medical Malpractice Award Among Estate Beneficiaries In a settlement in the Surrogate’s Court, Frank successfully represented a surviving spouse in litigation on the allocation of a settlement award of over $3 million in which the wife of the firm’s client had died in childbirth, survived by children of her first marriage and the only child of her marriage to our client. The executor of the estate, who was our client’s wife’s first husband, took the position that, for various reasons, no part of the settlement proceeds should be paid to our client.
•	Interpretation of Decedent’s Will – Allocation of Estate Taxes Frank and the firm successfully represented a major health care institution in challenging the Executors’ interpretation of the Decedent’s tax apportionment clause in her Will. The charitable beneficiary would have been deprived of hundreds of thousands of dollars of its proper share of a multi-million dollar estate had the Executor’s interpretation been adopted. Matter of McKinney, 117 Misc. 2d 173 (Surr. Ct., Westchester 1982), affirmed, 101 A.D.2d 477 (2nd Dep't 1984), mot. for lv. to appeal denied, 63 N.Y.2d 607