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I am dedicating this article to my long time mentor, the late former Surrogate John D. Bennett, who passed away on Feb. 1, 2005, at the age of 93. Early in his career, the surrogate served in the Assembly and later in the Senate which gained for him not only the knowledge of the workings of the Legislature, but also friendships that he developed while he served in Albany. This came of great assistance to him later on in his career when he was called upon to chair the Temporary State Commission on the modernization, revision and simplification of the laws of estates. He was elected as Judge of the Surrogate’s Court of Nassau County in 1954 and served until July 1980. Many of his decisions are cited because of his expertise in the area of trust and estates. Temporary Commission, Bennett Commission What I would like to recall in this article is his work on the Temporary Commission which came to be known as the Bennett Commission. It was in existence from 1962 until 1967. It consisted of 14 commissioners including surrogates, state senators, assemblypersons and some prominent practitioners in the area of trust and estates. The laws of trust and estates both of substance and procedure were spread out over many of our legislative laws including real property, sales, personal property, insurance, taxation and many other miscellaneous laws. It was the task of the commission to make a comprehensive study of the relevant provisions dealing with real property, personal property, the Decedent Estate law, the Surrogate’s Court Act and such other statutes as the commission deemed advisable for the purpose of correcting any defects that appeared in the laws relating to the overall administration of estates, descent and distribution, practice and procedure and to modernize, simplify and improve the law and practice as it related to trust and estates. Upon being elected as chairman of the commission, Judge Bennett undertook to put together a staff and to organize meetings of the commissioners to determine problem areas and to establish an approach to effectuate the goals to which they were commissioned. Under Judge Bennett’s tutelage, the commission weighed the desirability of a tight, logical rule to govern every possible estate as against a simple, reasonable rule for the convenience of the vast majority. It was the surrogate’s theory that laws should not be made to cover the 1 percent of cases where there may be a problem, thus causing the other 99 percent of the cases to bear unnecessary time and expense. It was his theory that there was always a way to deal with the small fragment of cases that needed special attention and the overall statute dealing with trust and estates, both from the standpoint of substantive law and procedure, should address the majority of cases and, accordingly, he sought to simplify the practice and procedure. The EPTL and the SCPA The surrogate zeroed in on problem areas such as our laws dealing with descent and distribution, probate of wills, administration of small estates, right of election for surviving spouses and other areas that the commission ultimately decided to focus on. After hearings and review, they ultimately made recommendations on various issues to the Legislature by independent bills. The surrogate felt it appropriate not to submit just one bill for legislative review unless it dealt with relatively minor matters. He felt that major matters should be dealt with independently, and he ultimately was able to have the legislation enacted into a substantive consolidated law dealing with trusts and estates, which became the Estate Powers and Trusts Law. As to procedure, ultimately, the Surrogate’s Court Procedure Act was enacted. The surrogate was elected as a member of the Constitutional Convention that was held in 1966 and 1967. As a result of his experience in being chairman of the commission, he advised the powers to be not to offer to the voters an all-or-nothing-at-all new constitution. Unfortunately, they did not heed his advice and the entire proposed constitution was defeated. In 1964, the Republicans in the state of New York lost control of the Senate and the Assembly, and some prevailed upon the new speaker and the new temporary president of the Senate to change chairmanships of various commissions. However, because of the reputation of Judge Bennett, the leadership did not change the chairmanship of the commission and he continued with the work of the commission and then guided the bills through the Legislature. He was very successful in getting the commission’s bills passed because of the thoroughness of the research and preparation of reports and his familiarity with the process enacting legislation in New York. I was fortunate in working with the surrogate for many years. First as a law assistant, then as his deputy chief clerk, then chief clerk and, then ultimately, I succeeded him as surrogate. I had a close view of his accomplishments. Having worked so diligently on the work of the commission and knowing that the goal was to modernize and revise and simplify the estate law, he well understood what he recommended to the Legislature and what they would adopt. As surrogate and active in the Surrogate’s Association, Judge Bennett then proceeded to put into practice those recommendations in order to speed up administration of estates, to modernize the practice and to make the practice as simple as possible. Judge Bennett implemented and encouraged the other surrogates’ courts to modern practice by pretrial conferences that were to encourage settlements where proper, or to streamline pretrial procedures. Issues were narrowed. Discovery was scheduled for specific times. Exchange of witness information was afforded and scheduling of the witnesses to testify was organized. The surrogates had their different individual local rules. Practice was not uniform throughout the state. He participated in the organization of uniform rules for all of the surrogates of the state of New York that are in effect today. Judge Bennett was a model as to how a surrogate should act and his conduct permeated down to his staff. His theory was that it is nice to be nice. That does not mean you give the courthouse away, but the practice in the field of trust and estates should be polite and the staff should be courteous and helpful, because, in the long term, that not only helps the practice, but it expedites matters that are pending in the court. Simplifying Procedures Judge Bennett presided over 25,000 adoptions and, needless to say, it was one of the joys of being a surrogate. While he wanted to be sure that the ultimate determination in an adoption proceeding was made correctly and that the decree was secure, he did his best to simplify the practice and procedure. He did not want to have it costly, complex or difficult. He was concerned about the complexity of proceedings involving people who suffered disabilities. We had laws dealing with the appointment of committees. Later it was revised so that we had conservators. Today, we now have Article 81 guardians appointed under the Mental Hygiene Law. Judge Bennett was concerned about the expense of those proceedings dealing with a mentally retarded person and for those who suffered severe learning disabilities. Accordingly, he supported legislation to simplify procedures and Article 17A of the Surrogate’s Court Procedure Act was ultimately enacted. He made the practice and procedure regarding 17A proceedings as simple as possible in order to alleviate parents of undue concern, delay and cost. Probate courts in New York were first recognized in the New York Constitution of 1777. Through the years, there was often discussion about merging the Surrogate’s Court with the courts of general jurisdiction and, each time, rather than abolishing the court, gradually more and more jurisdiction was afforded to the court. Ultimately, the court became a full Constitutional Court in 1961. Surrogate Bennett contributed to the expansion of the jurisdiction of the Surrogate’s Court, such as jurisdiction over inter vivos trusts, common trust funds, adoption proceedings, limited jurisdiction concerning guardians under Article 81 of the Mental Hygiene Law, SCPA 17A proceedings and expanded jurisdiction regarding discovery of property under Article 21 of SCPA. One of Judge Bennett’s major achievements had to do with the right of election. In the 1930s, Judge Bennett’s predecessor commission, the Foley Commission, provided a surviving spouse with a right to elect against a will. However, the surviving spouse very often was cheated out of inheritance because of testamentary substitutes. The work of the Bennett Commission included testamentary substitutes that a surviving spouse could elect against. Once the Bennett Commission completed their work, periodically, the Legislature was asked to create a commission to update EPTL and SCPA. In 1990, the Legislature did formulate what is known as the Advisory Committee to the Legislature on EPTL and SCPA and I was fortunate to be named chairman of that committee. Right up to the surrogate’s death, I had the opportunity to converse with him regarding revisions in our laws dealing with EPTL and SCPA. In fact, on the Saturday before his death, I went over matters with him and was able to get his wise advice. The work of the Bennett Commission, with its reports, recommendations and studies, is available in print form (as are the five reports of the Advisory Committee) and contains a wealth of information supporting the revisions made in order to modernize the practice of trust and estates. Professor Joseph T. Arenson We are truly indebted to the surrogate for the great contribution he made in effectuating the practice of trust and estates in the State of New York as it exists today. It is with sadness that we also note the passing of another giant in the area of trust and estates, Professor Joseph T. Arenson. The surrogate had a great fondness for Professor Arenson and appreciated his counsel. There will be a memorial for the surrogate at the Surrogate’s Court, Nassau County, 262 Old Country Road, Mineola, New York, on Wednesday, May 18, 2005 at 9:30 a.m. C. Raymond Radigan is former surrogate of Nassau County and of counsel to Ruskin Moscou Faltischek. He also is chairman of the advisory committee to the Legislature on estates powers and trust law and the Surrogate’s Court Procedure Act.

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