OPINION OF THE COURT
Andrias, J.P.
In these appeals arising from a Surrogate’s Court proceeding to determine what legal fees are due to the law firm of Graubard Miller for its representation of Alice Lawrence and her son Richard Lawrence in connection with the estate of her late husband, the principal issue presented is whether a 2005 revised retainer agreement calling for Mrs. Lawrence to pay a contingency fee of 40% of any future monies distributed to the beneficiaries of the estate is unconscionable on its face. We find that, [4]*4while at first blush such agreement might arguably seem excessive and invite skepticism, before any determination regarding unconscionability can be made, the circumstances underlying the agreement must be fully developed, including any discussions leading to the agreement, as well as the prospects at that time of successfully concluding the litigation in favor of Mrs. Lawrence.
Sylvan Lawrence, the husband of respondent Alice Lawrence, died in 1981. His will left his estate to his wife and three children and was admitted to probate on January 29, 1982. Mr. Lawrence’s brother was named executor and served in that capacity until his death in late 2003, after which the decedent’s son, Richard Lawrence, succeeded him. In 1983, Mrs. Lawrence retained the Graubard firm to represent her in connection with her deceased husband’s estate on an hourly fee basis, which retention was confirmed by letter dated August 4, 1983. Thereafter, the Graubard firm billed Mrs. Lawrence over $18 minion in legal fees incurred in litigation instituted against the executor of the estate concerning his administration of the estate, as well as other matters. During that period more than $350 million in distributions were made to the beneficiaries of the estate. In addition, in December 1998, Mrs. Lawrence paid three of the firm’s partners bonuses or gifts totalling over $5 million, plus approximately $2.7 million in gift taxes on such payments.
In November 2004, according to Mrs. Lawrence, she noticed that her legal bills were increasing to almost $1 million per quarter and asked about the possibility of entering into a new fee arrangement. As a result, in January 2005, a modified retainer agreement was entered into which provided, in pertinent part, that, commencing January 1, 2005, the firm would continue to bill Mrs. Lawrence on an hourly basis for services rendered with an annual cap of $1.2 million, exclusive of disbursements. In the event any additional monies were distributed to the beneficiaries of the estate, or Mrs. Lawrence settled the litigation with the executor’s estate, the Graubard firm was to be paid from Mrs. Lawrence’s share of such monies 40% of the total distributed to the beneficiaries, minus the total amount previously paid by her pursuant to the one-year, $1.2 million retainer. Prior to the revised retainer agreement, Mrs. Lawrence had personally negotiated with her nephew, the late executor’s son, and received a $60 million offer from the executor’s estate, but such offer did not result in a settlement.
On May 18, 2005, about 4V2 months after the modified retainer agreement was entered into, the Graubard firm reached [5]*5a settlement in the litigation against the former executor’s estate in which it agreed to pay the Lawrence estate approximately $104.8 million. Shortly thereafter, Mrs. Lawrence retained new counsel and refused to pay the Graubard firm’s fee.
On August 5, 2005, the Graubard firm filed a petition in Surrogate’s Court to compel payment of its legal fees, asserting claims against Mrs. Lawrence for breach of the 2005 retainer fee agreement in the amount of 40% of not less than $110.3 million plus 40% of any additional sums paid to the estate, less $348,272.78 paid by Mrs. Lawrence to Graubard on May 6, 2005, together with statutory interest, or alternatively, quantum meruit legal fees in the same amount. The petition also asserted claims against the current executor, Richard Lawrence, for tortious interference with contract in inducing his mother’s breach of the retainer agreement and to recoup for legal services benefitting the estate.
By order dated September 12, 2005, Surrogate Roth referred the petition to compel payment of legal fees to a Referee to hear and report. The next day, Mrs. Lawrence brought suit in Supreme Court for, inter alia, rescission of the revised retainer agreement, unjust enrichment, conversion, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, an accounting, and declaratory relief. By order entered December 16, 2005, that action was removed to Surrogate’s Court where it was also referred to the Referee. In the meantime, respondents Alice and Richard Lawrence moved before the Referee to dismiss the petition pursuant to CPLR 3211 and the Graubard firm cross-moved for partial summary judgment dismissing Mrs. Lawrence’s counterclaim for a refund of all fees previously paid to the Graubard firm and three of its partners.
Alice Lawrence appeals from those orders that removed her Supreme Court action to Surrogate’s Court, confirmed the Referee’s report and denied her motion to dismiss the petition, and directed her to appear for her deposition. Richard Lawrence appeals from the order confirming the Referee’s report.
Supreme Court appropriately removed Alice Lawrence’s action for contract rescission, unjust enrichment, and related causes of action against her former attorneys to Surrogate’s Court, which clearly has subject matter jurisdiction over the matter. The complaint in that action stems from her retention of the Graubard firm to represent her in litigation, spanning over 22 years, against the estate’s former executor and her [6]*6claims against the individual defendants relate to “bonuses” or “fees” paid in relation to the estate administration and litigation. Moreover, there was already pending in Surrogate’s Court the special proceeding brought by defendants against her to enforce their 2005 amended retainer agreement, in which proceeding she specifically raised the affirmative defense of unconscionability and sought, among other things, rescission of the retainer agreement, a declaration that it was unenforceable, and the return of over $18 million previously billed for services from 1983 through 2004 in connection with their representation of her in the matter of her late husband’s estate. Although CPLR 325 (e) does not mandate removal, as noted by Supreme Court, the interests of judicial economy dictate a strong preference for removal to Surrogate’s Court of all matters affecting the administration of a decedent’s estate (see Rosenman & Colin v Winston, 205 AD2d 451 [1994]; Birnbaum v Central Trust Co., 156 AD2d 309 [1989]).
As to appellants’ claims that the revised retainer agreement is unconscionable on its face, the foregoing operative facts are not in dispute. What is in dispute are the circumstances surrounding the revision of the parties’ retainer agreement and the value of the Graubard firm’s services in effecting a final settlement of the decades-old litigation involving the distribution of the estate.
It is well settled that
“[a] determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made—i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.
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OPINION OF THE COURT
Andrias, J.P.
In these appeals arising from a Surrogate’s Court proceeding to determine what legal fees are due to the law firm of Graubard Miller for its representation of Alice Lawrence and her son Richard Lawrence in connection with the estate of her late husband, the principal issue presented is whether a 2005 revised retainer agreement calling for Mrs. Lawrence to pay a contingency fee of 40% of any future monies distributed to the beneficiaries of the estate is unconscionable on its face. We find that, [4]*4while at first blush such agreement might arguably seem excessive and invite skepticism, before any determination regarding unconscionability can be made, the circumstances underlying the agreement must be fully developed, including any discussions leading to the agreement, as well as the prospects at that time of successfully concluding the litigation in favor of Mrs. Lawrence.
Sylvan Lawrence, the husband of respondent Alice Lawrence, died in 1981. His will left his estate to his wife and three children and was admitted to probate on January 29, 1982. Mr. Lawrence’s brother was named executor and served in that capacity until his death in late 2003, after which the decedent’s son, Richard Lawrence, succeeded him. In 1983, Mrs. Lawrence retained the Graubard firm to represent her in connection with her deceased husband’s estate on an hourly fee basis, which retention was confirmed by letter dated August 4, 1983. Thereafter, the Graubard firm billed Mrs. Lawrence over $18 minion in legal fees incurred in litigation instituted against the executor of the estate concerning his administration of the estate, as well as other matters. During that period more than $350 million in distributions were made to the beneficiaries of the estate. In addition, in December 1998, Mrs. Lawrence paid three of the firm’s partners bonuses or gifts totalling over $5 million, plus approximately $2.7 million in gift taxes on such payments.
In November 2004, according to Mrs. Lawrence, she noticed that her legal bills were increasing to almost $1 million per quarter and asked about the possibility of entering into a new fee arrangement. As a result, in January 2005, a modified retainer agreement was entered into which provided, in pertinent part, that, commencing January 1, 2005, the firm would continue to bill Mrs. Lawrence on an hourly basis for services rendered with an annual cap of $1.2 million, exclusive of disbursements. In the event any additional monies were distributed to the beneficiaries of the estate, or Mrs. Lawrence settled the litigation with the executor’s estate, the Graubard firm was to be paid from Mrs. Lawrence’s share of such monies 40% of the total distributed to the beneficiaries, minus the total amount previously paid by her pursuant to the one-year, $1.2 million retainer. Prior to the revised retainer agreement, Mrs. Lawrence had personally negotiated with her nephew, the late executor’s son, and received a $60 million offer from the executor’s estate, but such offer did not result in a settlement.
On May 18, 2005, about 4V2 months after the modified retainer agreement was entered into, the Graubard firm reached [5]*5a settlement in the litigation against the former executor’s estate in which it agreed to pay the Lawrence estate approximately $104.8 million. Shortly thereafter, Mrs. Lawrence retained new counsel and refused to pay the Graubard firm’s fee.
On August 5, 2005, the Graubard firm filed a petition in Surrogate’s Court to compel payment of its legal fees, asserting claims against Mrs. Lawrence for breach of the 2005 retainer fee agreement in the amount of 40% of not less than $110.3 million plus 40% of any additional sums paid to the estate, less $348,272.78 paid by Mrs. Lawrence to Graubard on May 6, 2005, together with statutory interest, or alternatively, quantum meruit legal fees in the same amount. The petition also asserted claims against the current executor, Richard Lawrence, for tortious interference with contract in inducing his mother’s breach of the retainer agreement and to recoup for legal services benefitting the estate.
By order dated September 12, 2005, Surrogate Roth referred the petition to compel payment of legal fees to a Referee to hear and report. The next day, Mrs. Lawrence brought suit in Supreme Court for, inter alia, rescission of the revised retainer agreement, unjust enrichment, conversion, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, an accounting, and declaratory relief. By order entered December 16, 2005, that action was removed to Surrogate’s Court where it was also referred to the Referee. In the meantime, respondents Alice and Richard Lawrence moved before the Referee to dismiss the petition pursuant to CPLR 3211 and the Graubard firm cross-moved for partial summary judgment dismissing Mrs. Lawrence’s counterclaim for a refund of all fees previously paid to the Graubard firm and three of its partners.
Alice Lawrence appeals from those orders that removed her Supreme Court action to Surrogate’s Court, confirmed the Referee’s report and denied her motion to dismiss the petition, and directed her to appear for her deposition. Richard Lawrence appeals from the order confirming the Referee’s report.
Supreme Court appropriately removed Alice Lawrence’s action for contract rescission, unjust enrichment, and related causes of action against her former attorneys to Surrogate’s Court, which clearly has subject matter jurisdiction over the matter. The complaint in that action stems from her retention of the Graubard firm to represent her in litigation, spanning over 22 years, against the estate’s former executor and her [6]*6claims against the individual defendants relate to “bonuses” or “fees” paid in relation to the estate administration and litigation. Moreover, there was already pending in Surrogate’s Court the special proceeding brought by defendants against her to enforce their 2005 amended retainer agreement, in which proceeding she specifically raised the affirmative defense of unconscionability and sought, among other things, rescission of the retainer agreement, a declaration that it was unenforceable, and the return of over $18 million previously billed for services from 1983 through 2004 in connection with their representation of her in the matter of her late husband’s estate. Although CPLR 325 (e) does not mandate removal, as noted by Supreme Court, the interests of judicial economy dictate a strong preference for removal to Surrogate’s Court of all matters affecting the administration of a decedent’s estate (see Rosenman & Colin v Winston, 205 AD2d 451 [1994]; Birnbaum v Central Trust Co., 156 AD2d 309 [1989]).
As to appellants’ claims that the revised retainer agreement is unconscionable on its face, the foregoing operative facts are not in dispute. What is in dispute are the circumstances surrounding the revision of the parties’ retainer agreement and the value of the Graubard firm’s services in effecting a final settlement of the decades-old litigation involving the distribution of the estate.
It is well settled that
“[a] determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made—i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.
“The procedural element of unconscionability requires an examination of the contract formation process and the alleged lack of meaningful choice” (Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-11 [1988] [citations and internal quotation marks omitted]).
As concluded by the Referee, there is no authority for finding a 40% contingent fee unconscionable on its face. Generally, before a determination of unconscionability can be made, a full trial of the issues is required. As to Mrs. Lawrence’s claim that [7]*7such fee is unconscionable because the entire amount was to be paid out of her share of the estate, the Referee found: “If Mrs. Lawrence understood this provision of the revised agreement and agreed to it, there is no reason why it should now provide a basis for finding the agreement invalid.” The basic requirement in any retainer agreement is that it be fair and reasonable. In the case of an amended agreement, the attorney has the burden of showing that the client understood the terms of the agreement and that the attorney did not exploit the client’s confidence in negotiating the terms of the agreement. As the Referee found: “Resolution of those issues will require evidence concerning all factors relevant to Mrs. Lawrence’s capacity, her understanding of the terms of the revised agreement, the completeness of her attorneys’ disclosure and whether they exploited their preexisting confidential relationship with her to obtain the favorable terms of the agreement.”
Relying upon the Court of Appeals’ recent decision in King v Fox (7 NY3d 181 [2006]), Mrs. Lawrence argues that dismissal is warranted where the retainer agreement is demonstrably unconscionable on its face. However, King merely holds that it is inherently difficult to determine the unconscionability of contingent fee agreements and it is not necessarily the agreed-upon percentage or the duration of the recovery that makes such a fee arrangement unconscionable, but the facts and circumstances surrounding the agreement, including the parties’ intent and the value, in hindsight, of the attorney’s services in proportion to the fees charged (id. at 192).
Mrs. Lawrence also argues that because she paid the Graubard firm over $18 million in hourly fees over the past 22 years, as well as “bonuses” or “gifts” to three of its partners of over $5 million, and paid over $2 million in gift taxes, the revised fee arrangement, which she concededly sought, is unconscionable because 4V2 months later the litigation with her late brother-in-law, the executor of the estate, was settled for over $100 million (she concededly had personally negotiated a potential $60 million settlement prior to entering into the revised agreement, but that settlement never reached fruition). She also claims that no one in the Graubard firm advised her to consult independent counsel before revising her agreement; however, the Graubard firm disputes this and states that she was so advised.
In their reply brief, appellants argue for the first time that the Graubard firm’s counterstatement of facts in its respondent’s brief continually refers to its memorandum of law in the [8]*8Surrogate’s Court as its only support for the majority of its alleged factual contentions; however, points raised for the first time in a reply brief, to which the adversary has no opportunity to respond, are not generally favored or accorded any credence. What is overlooked by appellants is that the parties charted their own procedural course in the Surrogate’s Court and no objection was made to the Graubard firm’s factual statements in its memorandum of law. Indeed, Mrs. Lawrence responded to the firm’s statement in its legal memorandum that she had been advised to seek independent counsel by denying such allegations in her affidavit in support of her dismissal motion.
Amy determination of unconscionability generally requires a showing of both procedural and substantive unconscionability, requiring an examination of the contract formation process and the alleged lack of meaningful choice (Gillman v Chase Manhattan Bank, 73 NY2d at 10-11). Mrs. Lawrence’s numerous allegations of procedural unconscionability necessarily implicate issues of credibility and are insufficient to warrant dismissing the petition at this point since the agreement cannot be said to be unconscionable on its face as a matter of law. Moreover, since the Referee did not convert the motion to one for summary judgment, the Graubard firm was not required to lay bare its proof. The issue of unconscionability, as well as Mrs. Lawrence’s claims that the so-called “bonuses” or “gifts,” as well as the agreement itself, violated attorney disciplinary rules against self dealing, etc., cannot be resolved without determining Mrs. Lawrence’s capacity (the fact that she was nearly 80, by itself, is insufficient to put her mental capacity into question); what she was advised; and whether she understood the ramifications of the revised agreement. Thus, the Referee correctly found that there are issues of fact militating against dismissal of the petition at this point. Moreover, until the question of the validity of the revised retainer agreement is resolved, Richard Lawrence’s motion to dismiss the tortious interference with contract claim against him was properly denied.
Finally, with regard to Mrs. Lawrence’s claim that the Referee went beyond the scope of the order of reference in ordering her deposition after he issued his report, the Referee was referred the “petition” and, subsequently, the Supreme Court action. Thus, his report on appellants’ motions for dismissal, and the Graubard firm’s cross motion for summary judgment, did not conclude his authority in the matter. Further, although the Surrogate cited CPLR 4301 (“Powers of referee to deter[9]*9mine”) rather than CPLR 4201 (“Powers of referees to report”) when discussing the Referee’s powers, CPLR 4201 specifically gives the Referee the power to “direct the parties to engage in and permit such disclosure proceedings as will expedite the disposition of the issues.” While CPLR 4311 provides that a referee’s powers “may” be specified and/or limited by the order of reference, no such limitation was placed on the Referee in this case. Since the Referee denied appellants’ motion to dismiss and respondents’ cross motion for summary judgment on the ground that the issues raised largely hinged upon facts not yet developed, it was wholly appropriate for the Referee to order that discovery proceed.
Accordingly, in the first appeal, the order of the Supreme Court, New York County (Helen E. Freedman, J.), entered December 16, 2005, which granted defendants’ motion pursuant to CPLR 325 (e) to remove Lawrence v Graubard Miller et al. (NY County index No. 603257/05) to the Surrogate’s Court, New York County, should be affirmed, without costs. In the second appeal, the order of the Surrogate’s Court, New York County (Renee R. Roth, S.), entered July 12, 2006, which, to the extent appealed from as limited by the briefs, confirmed the Referee’s report, dated May 16, 2006, recommending denial of respondents-appellants’, Alice and Richard Lawrence, CPLR 3211 motion to dismiss the petition, should be affirmed, without costs. In the third appeal, the order of the Surrogate’s Court, New York County (Renee R. Roth, S.), entered on or about October 4, 2006, which denied respondent Alice Lawrence’s challenge of an order of the Special Referee directing her appearance at her deposition, should be affirmed, without costs.