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Five Things to Know About Settlements in New York Surrogate's Court
It goes without saying that in all estate litigation and contested matters there comes a time when consideration is given as to whether the controversy can be settled. Settlements and agreements such as stipulations that embody a resolution can relate to the matter as a whole, or just certain aspects of the case such as the scheduling of discovery or motions, what legal issues are to be presented or which witnesses are to be allowed to testify. Estate Lawyers are familiar with the benefits and process of entering into agreements rather than engaging in what can seem to be endless confrontational litigation. Here are a few informational considerations.
Why Should You Settle – As anyone who has been involved in Court litigation knows these matters can last for months and even years, especially an estate case. Any consideration regarding a negotiated settlement requires a full assessment of the prospects for success and the time, effort and cost to take a matter through the full gamut of Court proceedings. It may be that the certainty of a settled benefit may outweigh the extended risk of a long and drawn out battle. Also, the Surrogate’s Courts encourage parties to find a resolution. Each Surrogate, such as those in Manhattan, Brooklyn, Queens and Bronx, will speak with the parties or have their Court attorney staff engage with them to try and resolve or eliminate pending issues. There are also Court mediation programs that try to have the parties find a common ground rather than get caught up in personal disputes. In fact, most cases in the Court are ultimately resolved in whole or in part. While fighting for a party’s rights is of paramount importance, a full review of a case may indicate that an agreement really is the best course to follow.
What Types of Cases can be Settled – Virtually all estate matters can be settled. These include the following: (i) probate cases including Will Contests; (ii) Intestate administration cases including disputes regarding who should be appointed as the Administrator; (iii) Fiduciary accounting proceedings, including compulsory accounting matters; (iv) Breach of fiduciary duty cases and petitions to remove an Executor or Administrator; (v) Turn-over proceedings where a fiduciary seeks to discover and obtain possession of estate assets from third parties.
Estate settlement is a very broad area. Compromises may be reached in matters such as creditor’s claims, mortgage foreclosures of estate properties, disputes concerning a business that was owned by the decedent, real estate ownership and title problems, and estate or income taxes that may be payable by the estate.
What Laws Control Settlements – The basic statute that relates to stipulations of settlement is found in New York Civil Practice Law and Rules (CPLR) Section 2104 entitled “Stipulations”. This statute provides that a stipulation should be in writing and signed by a party or his attorney or set forth in a Court Order entered in the Court record. In addition, a stipulation can be made between the parties’ attorneys in open Court. The stipulation should comply with the statute so that it is enforceable. This is important because it may be necessary to seek relief from the Surrogate to enforce the terms of the agreement. The stipulation may provide the method for enforcement or Court proceedings, such as contempt, may be needed. Stipulations of settlement can be very short, sometimes just a few sentences. In other situations, the agreement may be very lengthy and specific. It may take many weeks and multiple drafts of the document before a final stipulation is agreed upon.
Who can Enter Into a Stipulation – Typically, each of the interested parties can and should be included in and agree to the settlement. The parties should be over 18 years old and not subject to any disability. Sometimes a party may be under 18 years old. In those cases, the Surrogate’s Court may need to appoint a Guardian ad Litem to represent the minor’s interest in the case. Such appointment is usually an attorney selected by the Surrogate. If an interested party is incapacitated, such person may need to have an Article 81 Guardian appointed to sign on his behalf. The Guardian of the person or property may need to obtain approval from the Guardianship Court before executing the agreement.
Can the Stipulation be Changed or Vacated – The parties can usually agree among themselves to modify their stipulation or agreement. If only one party wants to change or void the agreement the Court would need to be shown that there is good cause to allow the change or revocation. It is usually difficult to prove these cases since the Courts want cases to be settled and do not favor going back to square one. Strong evidence showing fraud, mistake, collusion or some other inequitable result is needed to undo an agreement. This is especially true where the party who is seeking the relief has already accepted benefits from the settlement or the settlement occurred a long time before the application is made to set it aside.
Settling matters in the Surrogate’s Court is usually the rule rather than the exception. The Judges and the Court attorney staff are very adept at working with parties in conferences and pre-trial proceedings to try and reach a resolution. As an estate attorney for 40 years, I have represented clients in all varieties of estate and trust cases. It is important to achieve the best results. Many matters are settled but some require extensive Court proceedings. In such matters we will vigorously litigate to protect a client’s rights. I provide a free consultation on all estate and Guardianship issues. Call me now at (212) 325-2575 for a free review or email me at email@example.com. We provide reasonable and flexible fee arrangements and personal representation throughout the New York metropolitan area.