Trusts and Estates — Bills of Particulars, Gift, Renunciation

April 01, 2004

Bills of Particulars

In a contested accounting proceeding, motion was made, inter alia, for an order of preclusion based upon the objectants’ failure to provide an adequate bill of particulars.

The Court opined that an order of preclusion should only be granted under circumstances which demonstrated that a party’s failure to comply with a disclosure order was willful and deliberate. Upon consideration of the bill of particulars supplied by the objectants, the Court found that while it failed to respond to several of the petitioner’s demands, it was not so defective as to warrant preclusion. Specifically, the Court noted that one question of the demand was evidentiary in nature and beyond the scope of a bill, while the responses to other demands were so vague and general as to be virtually useless to the petitioner. While these responses might only be adequately provided after examination of the fiduciary, the Court determined that objectants had the obligation of stating that to be the case if true. Further, the Court held that objectants had to supply a list of personalty they claimed was part of the estate. Although the fiduciary had the burden of proof on this issue, once this burden was satisfied, the objectants had the burden of coming forward with evidence to establish that the account was inaccurate.

Accordingly, the objectants were directed to supply a supplemental bill of particulars with greater specificity, or risk being precluded from providing any evidence concerning the issues at trial.

In re Estate of Joseph DiMattina, New York Law Journal, December 10, 2003, p. 26 (Surrogate’s Court, Suffolk County, Surr. Czgier).

Gift

Before the Court was a contested discovery proceeding and an contested compulsory accounting proceeding, both involving the activities of the respondent vis the decedent’s assets prior to death.

A trial was held, at the conclusion of which the Court directed the respondent to account and to turnover to the petitioner all of the decedent’s books and records requested in the petition. In rendering this determination, the Court found that the respondent was the decedent’s de facto fiduciary with respect to his personal and financial affairs; i.e. a person who, based upon a relationship of trust and confidence, undertakes the duties and responsibilities of a fiduciary. Moreover, with respect to certain accounts that were in issue, the Court found that the respondent had failed to proof of her entitlement to the proceeds in these accounts either as a joint tenant or as a tenant in common. As to the respondent’s claims that a portion of her funds were commingled in the accounts, the Court held tha the issue of respondent’s contribution to the funds would be left for determination in the accounting proceeding.

In re Estate of Arthur Buxton, New York Law Journal, November 14, 2003, p. 29 (Surrogate’s Court, Westchester County, Surr. Scarpino)

Renunciation

The decedent died survived by his sister, who was the administrator of his estate, and half-brother. A wrongful death action was commenced by the administrator, which sought damages for pain and suffering, as well as pecuniary losses and loss of inheritance. After discovery, the defendants moved for partial summary judgment dismissing the claims for pecuniary loss and loss of inheritance. In opposing the motion, the administrator sought to file a late renunciation of her interest in the estate in favor of her daughter, who she claimed was more likely to receive support and an inheritance from the decedent. The defendants opposed.

A late renunciation can be filed if the court finds “reasonable cause” for doing so. Petitioner based her claim of reasonable cause on the decision in DeLuca v. Gallo, 287 AD2d 222 (2001). The decision in DeLuca recognized that although wrongful death damages are usually determined as of the decedent’s demise, the filing of a renunciation of an interest as a distribute in a wrongful death action shifts who is to be a distribute and thus a claimant in a wrongful death action.

The Court opined that the determination of “reasonable cause” for filing a late renunciation is a flexible analysis dependent on the facts of each case. In assessing the issue in the case before it, the Court noted that although petitioner sought to file her renunciation two years and nine months after the decedent’s death, her application was only nine months after the decision in DeLuca was rendered, and thus, from this perspective was not unreasonably late. This result, held the Court, was further supported by considerations of justice and fairness in requiring a tortfeasor to be responsible for damages to a person who actually suffered pecuniary loss as a result of the decedents death, though who is not a statutory distribute.

Accordingly, petitioner’s request to file a late renunciation was granted.

In re Estate of Bruce Howard Bowyer, New York Law Journal, December 3, 2003, p. 27 (Surrogate’s Court, New York County, Surr. Preminger)

Editor’s Note: The author is a partner with the law firm of Farrell Fritz, P.C., Uniondale, New York, where she concentrates in the field of trusts and estates. She was formerly a member of the Board of Directors of the Suffolk County Bar Association and an Officer of the Suffolk Academy of Law. She currently serves as a member of the Advisory Committee of the Suffolk Academy of Law, as well as an adjunct professor at Touro College, Jacob D. Fuchsberg Law Center, where she teaches Trusts and Estates.

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