Be Wary How You Plead

February 04, 2019

Pleadings, the most fundamental part of trusts and estates practice, if not all practice areas, are often the subject of critical decisions addressed to their scope and sufficiency. While a defective pleading may sometimes be remedied by way of an amendment, courts are not always inclined to grant such relief, and even have gone so far as to dismiss pleadings for failure to state a cause of action. Consider the following:

Objections to Probate Dismissed for Failure to Properly Plead. Before the Surrogate’s Court, New York County (Anderson, S.) in In re Stylianou, NYLJ, Dec. 12, 2018, at 27 (Sur. Ct. New
York County), was a contested probate proceeding in which the petitioner moved to dismiss the objections filed by the decedent’s four nieces. The decedent died with a modestly sized estate survived by her sister, and 10 nieces and nephews, who were childrenof three predeceased siblings. Pursuant to the pertinent provisions of the propounded instrument, she bequeathed her entire estate in equal shares per stirpes to her four siblings.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates. She is the past-chair of the New York State Bar Association’s Trusts and Estates Law Section. Reprinted with permission from New York Law Journal, Monday, February 4, 2019, Vol 261 – No. 23

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