New York Probate & Estate Litigation Blog

In the past, I have reported here about the need for a uniform guardianship law in order to prevent elder kidnapping to gain control of a senior citizen's estate. The case of Lillian Glasser made headlines two years ago when it took a federal court to unsnarl a legal imbroglio between a New Jersey widow and her children when her daughter attempted to keep her in Texas by obtaining an order from a Dallas probate judge while her mother was visiting her. The Hartford Courant reported on May 9th on a similar  and even more horrifying case.

Today's Greenwich Post reports that a one million dollar settlement negoiated with Royal Caribbean Cruise Lines  by Jennifer Hagel Smith has been upheld by Connecticut Probate Judge David Hopper. You may remember that Ms. Hagel Smith's husband George Smith IV mysteriously disappeared from the cruise ship Brilliance of the Seas on the couple's honeymoon cruise in the Aegean Sea in July 2005.

It takes more than good intentions to create a valid trust. This fact was driven home recently when New York's Second Department Appellate Division issued its ruling in Fasano v. DiGiacomo 853 N.Y.S. 2d 657. In 1998, Lucy Fasano executed a trust agreement naming her sister Anna as trustee and her children Ralph Fasano and Lucille DiGiacomo as beneficiaries.  The trust agreement designated Lucy's home as the trust corpus and she actually did execute a deed transferring the property to Anna as trustee. That, however, is where the wheels came off, beginning with Anna's failure to sign the trust document . 

Saratoga County Surrogate's Court has issued a decision in the Matter of the Estate of Antoinette M. Murray 853N.Y.S.2d 680 which dismissed objections based upon lack of capacity and undue influence even though evidence indicated that  the decedent had suffered from dementia. Significantly, this will was executed under the supervision of the attorney-drafter and its witnesses attested that the testator understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty, and her relationship to them. What complicated things here was that a neurologist issued a report  that she had suffered from dementia .

A fairly interesting decision from the Broome County Surrogate deals with a will revoked by subsequent wills. In The Matter of the Will of Julianna B. Sharp 852 N.Y.S.2d 713 the doctrine of dependent relative revocation was held to apply to revive a will that had been properly executed and witnessed even though the decedent had written three subsequent wills, each of which revoked earlier wills. 

A few days ago, your faithful lawblogger attended a seminar on arbitration. One of the interesting tidbits of the course was that George Washington had a provision in his will requiring all disputes be arbitrated rather than litigated. It would seem that the aim of the father of our country to foster means of alternate dispute resolution more than two hundred years ago clearly placed him ahead of his time!

New York's Second Department Appellate Division has upheld a decision of Queens County Surrogate Robert Nahman that the the fact that an attorney-drafter of a will was also named as an executor and the trustee of a testamentary charitable trust did not raise a presumption of undue influence. In the Matter of Gladys Coopersmith 852 N.Y.S.2d 247, the motion for summary judgment filed by the petitioner (who was the attorney-drafter) was granted dismissing objections claiming that the mere fact that petitioner had played multiple roles equated to undue influence. The court found that in the absence of the attorney-drafter also being a beneficiary under the will, no such inference could be raised.

The issue of lost wills has been revisited once more by New York's Appellate Division, Second Department. In the Matter of Peter T. Demetriou 851 N.Y.S.2d 636, the appellate court has affirmed Nassau County Surrogate John  Riordan's decision to deny an objectant's motion for summary judgment to deny probate where the original copy of decedent's will was lost.  

It seems that old rock stars have the most interesting estates.The International Herald Tribune has reported that Ike Turner's ex-wife Jeannette Bazzell Turner has filed a claim against his estate stemming from his purported failure to pay her her share of community property after their 1995 divorce in California.

About a year ago, I reported here on the  Fourth Department's Matter of Accounting By Fleet Bank which reversed a lower court to provide trust benefits to Elizabeth McNabb, an out of wedlock daughter of the heiress to the Jello fortune after she was adopted out of the family.  Unfortunately, for Ms. McNabb, my earlier headline that she was to receive her "just desserts" has proven to be somewhat premature because New York's Court of Appeals has now reversed that decision.