As the year 2025 drew to a close, the Appellate Courts were busy rendering opinions impacting the field of trusts and estates. Consider the following decisions of interest.
Standing to Compel an Accounting
In Lange v. Dixson, the Appellate Division, Fourth Department, reversed an order entered upon reargument, which adhered to a prior determination that petitioner lacked standing to compel an accounting pursuant to General Obligations Law Sec. 5-1510.
Following the decedent’s death, her son commenced a proceeding seeking an order directing the respondent, his sister, to provide a copy of all bank statements, receipts, disbursements and transactions entered by her while acting as their late mother’s attorney in fact. The Surrogate’s Court granted that part of respondent’s motion to dismiss the petition finding that since petitioner was not the personal representative of his mother’s estate, he lacked standing to request an accounting. Petitioner moved to reargue his opposition to respondent’s motion, contending that the Surrogate had overlooked General Obligations Law Sec. 5-1510(3), which authorized a child of a principal to commence the subject proceeding. The Surrogate granted leave to reargue, but adhered to his original determination.
In reversing the Surrogate Court’s order, the Appellate Division held that the death of the decedent did not divest the petitioner of standing to compel an accounting by respondent as the decedent’s attorney-in-fact. Rather, the court observed that the General Obligations Law Sec. 5-1510(2) provides that a special proceeding to compel an accounting may be commenced by any person, including the personal representative of a decedent’s estate, as well as “the agent, spouse, child or parent of the principal, the principal’s successor in interest, or any third party who may be required to accept a power of attorney.” General Obligations Law Sec. 5-1510 [3] (Emphasis supplied). To this extent, the court held that the Surrogate’s order, which effectively restricted the list of those persons who could compel an accounting, directly contravened the plain language of the statute, and, therefore, could not be sustained. Lange v. Dixson, 2025 N.Y. App. Div. LEXIS 5524 (4th Dept. 2025).
Immediate Suspension of Fiduciary Affirmed
Before the Appellate Division, Second Department, in Matter of La Pava, was an appeal from an order of the Surrogate’s Court, which granted that branch of the respondents’ motion for summary judgment, to the extent of immediately suspending the executor from serving as fiduciary pending the appointment of a successor.
The decedent died, testate, survived by her minor son. Pursuant to the pertinent provisions of her will, the decedent devised and bequeathed her entire estate, in trust, to her son, but for 50% of her residence, which was devised to her son’s father. Upon admission of the will to probate, the decedent’s sister was appointed executor and trustee of her estate. Among the decedent’s assets at death, were a home located in Riverhead, New York, and a home located in White Plains, New York.
Following several disputes between the minor son’s father and the executor, the father (petitioner) commenced a proceeding, pursuant to SCPA 711, to revoke the letters testamentary and of trusteeship issued to the executor. Thereafter, the executor commenced a discovery proceeding against the petitioner, and a separate discovery proceeding against the decedent’s father. Petitioner and decedent’s father then moved for summary judgment on that part of the proceeding pursuant to SCPA 711 to revoke the executor’s and trustee’s letters, and to dismiss the petitions for discovery. The Surrogate’s Court granted that branch of the motion as pertained to the removal proceeding, and the executor appealed.
The court observed that while a decedent’s choice of executor should be given great deference, a fiduciary may be removed without a hearing only where the misconduct complained of demonstrates a danger to the estate or trust if removal is denied. Within this context, the court noted that the undisputed record established that the executor lived in the White Plains house for almost two years, paying the estate only enough rent to cover the mortgage loan, insurance, and property taxes on the premises. Moreover, the executor allowed a nonparty to live at the property for nine months without paying rent to the estate, but rather, to the executor personally, in violation of his fiduciary duties.
Moreover, the court opined that while mere friction between a fiduciary and beneficiary is insufficient, in itself, as a basis for removal, where that friction interferes with the proper administration of the estate removal may be warranted. To this extent, the court found evident hostility between the petitioner and the executor, which was caused, in particular, by the executor’s refusal to make any distributions requested by the petitioner on behalf of his minor child, the estate’s principal beneficiary.
In view thereof, the court held that the Surrogate’s Court providently exercised its discretion in granting the motion for summary judgment to the extent of immediately suspending the executor from serving as fiduciary. Matter of La Pava, 2025 N.Y. App. Div. LEXIS 7312 (2d Dept. 2025)
Construction of Will Affirmed
In Matter of Lenk (Senken), the Appellate Division, Second Department, affirmed a decree of the Surrogate’s Court granting a petition for construction of the decedent’s Will. Pursuant to the pertinent provisions of Article Second of the instrument, the decedent devised and bequeathed all of his estate to his children in equal shares. Additionally, in the event his brother-in-law and sister survived him, Article Fourth of the instrument devised to them an estate for life in his real property located in Shelter Island, and directed that upon their death, the property be paid over by their personal representatives to their then living issue and to the decedent’s then living issue per stirpes.
In view of the foregoing, the children of the decedent’s sister petitioned for a construction of Article Fourth of the Will such that the subject real property passed in equal shares to them and decedent’s children. Thereafter, the decedent’s children requested that the Will be construed as devising the subject property only to them in equal shares. The Surrogate’s Court determined that it was the decedent’s intent to devise the property to his children and to his sister’s children, who were living at the time of vesting, in equal shares per stirpes. A child of the decedent appealed.
The court observed that in any construction proceeding, the decedent’s intent must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed. When the words of a will in the first instance clearly indicate an intention to make an absolute gift of the property to a donee, it will not be restricted or cut down to a lesser estate by subsequent or ambiguous words.
Based on the foregoing, the court held that the clear and unambiguous intent of the decedent was to devise the subject real property in accordance with the Surrogate Court’s decree.
The court further determined that since there was no ambiguity, resort to extrinsic evidence would have been inappropriate. Matter of Lenk, 2025 N.Y. App. Div. LEXIS 6314 (2d Dept. 2025).
Order Granting Partial Summary Judgment Affirmed
In Matter of Dibble, the Appellate Division, Third Department, affirmed the order of the Surrogate’s Court granting the petitioner’s motion for summary judgment dismissing the objections to probate on the grounds of fraud, but denying the motion to the extent that it sought dismissal of the objections on the grounds of undue influence, and the imposition of discovery sanctions.
The record revealed that the decedent executed a will in February, 2017, by which he devised and bequeathed his entire estate to his wife, or in the event his wife failed to survive him, to his son, the respondent. Shortly after his wife’s death in June, 2017, the decedent executed a new will devising his entire estate to petitioners, the decedent’s grandchildren and the respondent’s niece and nephew. The decedent died four years later.
The petitioners sought probate of the decedent’s last will, and objections were filed to probate by the respondent on the grounds, inter alia, of fraud and undue influence. Thereafter, petitioners moved to dismiss the objections, which motion was denied by the Surrogate’s Court. Petitioner’s then answered the objections and moved for summary judgment dismissing the objections and for discovery sanctions. The Surrogate’s Court granted the motion and dismissed the objections alleging fraud, but found a question of fact existed on the issue of undue influence, and whether there was a confidential relationship between the petitioners and the decedent. The court also denied dismissal of the objections on the basis of alleged discovery violations. Cross-appeals ensued.
In affirming the order of the Surrogate’s Court, the court found, inter alia, that respondent had demonstrated a triable issue of fact, specifically with respect to his allegation that the decedent had a confidential relationship with petitioners. In this regard, the record revealed that the decedent suffered from dementia and that the severity of the disease had steadily increased since its onset in 2014. Further, following the death of the decedent’s wife, and prior to the execution of the propounded will, the petitioners assumed responsibility for his financial affairs, and daily activities, which included arranging for the decedent to meet with counsel to discuss changes to his will. That instrument, which was executed ten days after decedent’s spouse died, radically differed from the decedent’s prior will, that was executed four months earlier.
Additionally, records revealed that petitioners served as the decedent’s attorneys-in-fact, and in that capacity, engaged in several large transactions for which they could offer no explanation. Although these transactions took place after the decedent’s last will was signed, the court found that they provided support, when considered together with the circumstances prior to the will execution, for the inference that a confidential relationship existed between the petitioners and the decedent. The court opined that despite the petitioners’ close family ties with the decedent, the facts in the record, viewed in the light most favorable to the respondent, permitted a factfinder to reasonably infer that petitioners acted not out of a family duty, but greed.
Further, the court agreed with the Surrogate’s Court on the issue of fraud, noting that respondent’s allegations in support of his claim were conclusory and speculative, rendering them insufficient to create an issue of fact.
Finally, the court found that while petitioners had submitted evidence suggesting that respondent had failed to fully and timely comply with certain discovery demands, it could not conclude that the Surrogate’s Court had abused its discretion by denying petitioners’ request to dismiss the objections on this basis. Matter of Dibble, 2025 N.Y.App. Div. LEXIS 6261 (3rd Dept. 2025).
Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C., practicing in the area of Estate Litigation. She can be reached at icooper@farrellfritz.com.
Reprinted with permission from the January 29, 2026 edition of The New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
