New York Probate & Estate Litigation Blog

Self-Executing Affidavit Fails To Establish Due Execution; Appellate Division Orders Trial On The Merits

Philip Bernstein — 2008-07-25T22:58:44-05:00

A case just handed down from New York's Appellate Division Third Department, Matter of Paigo, 2008 NY Slip Op 06250 involves an interesting and successful challenge to the presumption of due execution which arises when the witnesses to a will sign a self-executing (or "living" affidavit) where they attest that the testator signed the will in their collective presence, knew what he or she was doing, understood and agreed with the contents of the will and appeared to be of sound mind. The problem in this case was that the petitioner had presented this will to the testator for signature in a hospital bed without being able to offer substantial proof that he knew the contents of his estate or the identity of the "natural objects of his bounty". A review of the decedent's medical records indicated that he was "forgetful" and "confused", was impulsive and did not retain information. Also significant was the fact that although an attorney was "minimally involved in the process", he was retained by the petitioner. The court noted that even though he was present at the execution of the will, he had very limited experience in this area of the law. Upon review of the Surrogate's decision, the Appellate Division found that triable issues of fact existed as to the competence of the decedent and the execution of the will requiring that a trial on the merits of the case be held.

Public Administrator Survives Distributees' Attempt At Removal

Philip Bernstein — 2008-07-23T15:10:58-05:00

New York's Appellate Division has upheld a decision of New York County Surrogate Renee S. Roth which denied a petition aimed at discharging the public administrator. The case is the Estate of Jordan 859 N.Y.S.2d 447. The petition involved an application by first cousins of the decedent to revoke letters of administration previously issued to the public administrator.

]]>While your faithful law blogger has yet to meet a colleague in estate practice who does not, from time to time, harbor feelings of extreme hostility towards the public administrator, a palace revolution must be carefully planned in order to succeed. Evidently, this one was not.

Petitioners' charge that the public administrator had mismanaged the claim and had caused "irreparable harm" needed to be accompanied by sufficient proof to sustain it but the court found that no evidence was offered in support of this claim. Also, the application to discharge the public administrator was made just six days after she was appointed to the case. That made it rather hard to demonstrate unfitness and irreparable harm.

The court also found that the petitioners had not offered "proof sufficient to establish their superior entitlement to letters of administration over the respondent" . They failed to meet their burden of proof that they were the class of kin (first cousins) closest in relationship to the decedent . The family tree that they offered as proof of this was determined to be insufficient to overcome the possibility that others closer in kinship (such as children, grandchildren, brothers or sisters) are alive. Their attorney did not have personal knowledge of the family tree and therefore could not help them to establish their position.

The woods are full of horror stories involving public administrators. While they provide a valuable and legally necessary service by handling the estates of decedents who have left no qualified person behind to do the job, there are many occasions when cases get lost in the cracks and literally years go by before deserving and legally-entitled distributees see their inheritances. While there are legal remedies available to deal with these situations, they are fraught with pitfalls and often the money at stake is not enough to justify a full-court press. There oughta be a better way!

South Carolina Court Orders That James Brown's Estate Will Be Auctioned

Philip Bernstein — 2008-07-15T22:34:30-05:00

Yesterday's Charlotte Observer has reported on the latest chapter of the turbulent death of James Brown. The South Carolina Court of Appeals has directed that at least 300 items belonging to the late Godfather of Soul are to be auctioned off by Christies in New York on Thursday. The controversy that was part of the life of Brown has continued long after his death on Christmas Day 2006. You may recall that his body was kept in cold storage in his home while a battle raged as to how and where he should be buried. Then there were issues as to whether or not previously unidentified children were entitled to share in his estate. Now there has been a legal battle over the disposition of many items of his personal possessions. With Brown's former business managers waging a court fight to stop the auction, Judge Jasper Cureton has decided to permit the auction to take place and "sort things out later". Hurry to Christies on July 17th if you want to take a shot at acquiring Brown's red jump suit, his blue satin cape or some of his hair picks or rollers! One certain thing , however, is that this estate still has some more mileage -- and headlines -- left, so stay tuned.

Brooklyn Surrogate Awards Elective Share Of 100 Year Old's Estate To 47 Year Old Nurse/Wife After Deathbed Marriage

Philip Bernstein — 2008-07-14T21:13:30-05:00

The New York Law Journal has recently reported a significant, but bizarre decision concerning the spousal right of election. Brooklyn Surrogate Diana A. Johnson has awarded 47 year old Hua "Judy" Wang one third of the five million dollar estate of her 100 year old husband after a short deathbed marriage. The ruling in the Matter of Berk, 2488/06 has raised more than a few eyebrows --as well as many questions about the law and how it should be applied.

]]>Surrogate Johnson saw no way to deny the grieving widow's application in the light of the fact that the Estate's Powers and Trusts Law makes no exception to the right of election as long as the marriage was valid from the time entered into by the parties until the date it ends in death. She opined that even if the marriage is eventually annulled, Ms. Wang was entitled to her statutory share of her husband's estate . "[W]hether Irving Berk lacked capacity or his consent was procured by force, fraud or duress, it does not disqualify petitioner from taking her elective share. While this may appear incongruous and seemingly invite a plethora of surreptitious 'deathbed marriages' as a means of obtaining one-third of a decedent's estate immune from challenge, this is simply the state of the law. It is not for this Court to write disqualifications into the law...."

It should be distinguished that the marriage here was voidable and not void. Until such time as it is established that the marriage should not have been made, it would normally remain undisturbed and in full force and effect. Therefore, even if a legal action had been underway to set the marriage aside, an intervening death would leave the survivor legally entitled to enforce his or her right to a spousal election against the estate. Some marriages are void when made --a bigamous marriage or an incestuous marriage never confers spousal rights on either party such as might allow this result. Suffice to say, however, that there is something amiss with laws which permit a caregiver to secretly marry a centagenarian more than fifty years her senior and walk away with one third of a five million dollar estate a few short weeks later ! Clearly the legislature needs to take note.

Guardian Ordered To Repay $403,000 To Judge's Estate

Philip Bernstein — 2008-07-08T23:32:50-05:00

Earlier, I reported here about the sad events surrounding the end of the life of former Kings County Civil Court Judge John L. Phillips. Justice Phillips was a well-known and well-loved jurist whose last years were spent in a general decline. Ultimately it was necessary for a guardian to appointed to oversee his affairs. Several different judges and attorneys were appointed to handle that responsibility until the appointment of Emani Taylor Esq. in 2002.

]]>Unfortunately, Ms. Taylor saw the Judge's assets as an invitation and not a responsibility. It appears that she helped herself to hundreds of thousands of dollars of his assets. Now, as reported in the July 7 New York Law Journal, Justice Michael A. Ambrosino has directed the former attorney to repay $403,000 to the late judge's estate. Justice Ambrosino's lengthy decision is a classic recounting of "how not to do it". It underscores the need for constant vigilance where the assets of mentally incompetent persons are at stake. If a respected, capable and successful man of Judge Phillips' caliber could be so terribly victimized, the need for the highest level of scrutiny of incompetents' estates should be obvious.

A Dog's Life Isn't That Bad ! Eight Billion Dollar Helmsley Trust Is Slated To Be Applied To The Benefit Of The Nation's Canine Population

Philip Bernstein — 2008-07-02T11:19:27-05:00

Today's New York Times reports that the late Leona Helmsley has left a mission statement in connection with a testamentary trust valued as high as eight billion dollars. In it, she directs that virtually the entire fund be applied to the welfare of dogs. While Surrogate Renee R. Roth has already shown a willingness to modify the provisions of Ms. Helmsley's will to reduce the original twelve million dollar bequest to her dog to two million (!) dollars, the aim of New York law is to determine the true intent of the decedent and to follow his or her wishes as closely as possible. While it is understandable that a court might rail at the idea of leaving twelve million dollars to a single pooch, the trust's mission statement obviously has a broader intent in mind than the care and feeding of one animal. Since their are numerous organizations dedicated to animal welfare and the advancement of veterinary science, it may very well be that the entire trust will ultimately be applied for the benefit of our nation's canines --just as the late hotel magnate had obviously wanted.

CNBC Reports Settlement Of Tobias Case

Philip Bernstein — 2008-06-14T19:53:42-05:00

CNBC has reported that the litigation over the estate of the late hedge fund financier Seth Tobias is settled pending the approval of a Probate Judge in Florida Monday. Last December we reported here about the controversy raging since Tobias was found dead in his swimming pool in Palm Beach County on September 4, 2007. Tobias' brothers brought suit against his widow Filomena charging that she had murdered him by poisoning his pasta and then luring into a swimming pool on the promise of sex with a male stripper.

]]>Police have failed to find any substantial evidence supporting a criminal charge and have not charged Mrs. Tobias with any crime. Florida law would prevent her from inheriting from her late husband if she was found to have murdered him. There would have been a lower burden of proof for the brothers to meet in the civil action in Probate Court. It would have been necessary to prove their case by a mere preponderance of the evidence (51% would do it) rather than beyond a reasonable doubt which is the criminal standard.

Given the rather strange brew of evidence which has surfaced in this case, one would surmise that the burden would still have been pretty steep. Hence, it is hardly surprising that a settlement is in the works. While there will be no information released as to any sum of money changing hands, the brothers have evidently agreed to withdraw their accusations that their brother was killed by his wife.

Loyalty To Mother Held Violation Of Fiduciary's Obligations To Other Beneficiaries

Philip Bernstein — 2008-06-12T18:27:30-05:00

New York's Fourth Department Appellate Division has handed a stunning blow to the Commandment to "Honor thy father and thy mother" when that Biblical directive conflicts with good old fashioned fiduciary obligations. In Re Mergenhagen 856 N.Y.S.389 reversed an earlier decision of the Erie County (Buffalo) Surrogate Barbara Howe which had dismissed a petition to remove a trustee of two irrevocable trusts and to annul the revocation of one of the trusts. In doing so, the court comes to two interesting findings .

]]>In determining that the trust had not been properly revoked ,the court observed that the one petitioner was barred from seeking to annul the revocation of the trust because she had executed a document terminating the trust twelve years earlier. Not only had she waived her rights to sue for this relief by signing the document herself, but she was also barred by the doctrine of laches -- or simply waiting too long to exercise one's rights (strict translation is actually "sitting on one's rights"). The problem here was compounded by the fact that the other petitioner was only 21 at the time the termination was executed , but because it could not be shown that he was aware that the termination had been signed, he was therefore not precluded from seeking to annul the termination.

The court went on to rule that the trustee of the trust should be removed because his actions had been unduly favorable to his mother. By administering the trust for his mother's benefit despite express language of the trust instrument which prohibited such conduct , and by displaying open hostility towards the other beneficiaries (it was also found that the trustee and his mother had comingled non-trust money with trust funds) , the trustee had violated his duty of undivided loyalty which prohibits a trustee from even placing himself or herself in a position of potential conflct with his or her duty to the trust.

As an aside, I would point out that the trustee may have had a more sinister motive in providing extra benefits to his mother. It may not just be a case of taking good care of mom. It may also be a situation where substantial funds were diverted from the body of the trust and away from the other beneficiaries. The trustee then stands to benefit when mom passes away and he inherits from her. In this case, it would appear that the language of the trust instrument strongly condemned such a plan of action. It is therefore likely that, once removed, the trustee would be required to fully account and would then be subject to a surcharge for the property which was improperly diverted to his mother

The report of this case is actually a pretty good guide of "how not to administer a trust." It is also a pretty good reminder to those of us with trustee-clients that the average John Q. Trustee cannot be left indefinitely to his own devices. In the absence of some professional oversight, it is a sure bet that there will be hell to pay someday -- along with some king-sized legal fees!

Family Fights Over Guardianships Continue To Increase

Philip Bernstein — 2008-05-23T11:51:03-05:00

One of the last interviews given by Jacqueline Kennedy Onasis imparted a few words of wisdom which I have always tried to live by. She told her interviewer that the most important accomplishment of her life was getting her children to love each other. Unfortunately, as an article in today's Long Island Business News shows, this advice is generally honored in the breach. With parents living longer, it appears that guardianship battles between their children are on the increase nationally and attorneys in the practice of elder law are experiencing a litigation component of their practices which they had never anticipated. The sibling rivalries of childhood are now played out by baby boomer adults across the country in courtrooms where the prize is which sibling gets to take care of an aging parent -- and control that parent's fortune. As the article reports in an update of the litigation surrounding New Jersey widow Lillian Glasser (a topic often found in this blog), millions of dollars can be in play as families are torn asunder and an entire new discipline is developing in order to focus upon new ways to deal with the problems caused by these disputes.

Senior Citizen Escapes From Connecticut "Probate Prison" With The Help Of A Few Good Lawyers And Relatives

Philip Bernstein — 2008-05-10T08:47:37-05:00

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.

]]>It seems that Margot Claus, who will be eighty later this month, was visiting a distant cousin in Connecticut late last year when she suffered a fall and was hospitalized. She is a German national and a resident of New York with absolutely no relationship to Connecticut save for her unfortunate visit there. She does, however, have assets of over one million dollars and therein lies the root of this case.

Rather than allow her to recover and return home, her enterprising cousin, Linda Eger, went to probate court in Connecticut and --as that state's laws evidently permit-- got an order this past February from a North Haven court appointing her as Ms. Claus's "involuntary conservator". By so doing, she gained control over Ms. Claus's assets and presumably was also entitled to earn commissions in handling them as well. Meanwhile, Margot Claus became , in effect, a civil prisoner of the State of Connecticut. Her apartment in New York was emptied of its contents and a lawyer was hired to sell it while the attorneys working for the conservator in Connecticut generated fees which they attempted to have paid from the conservatee's assets.

This story does have a happy ending. Ms. Claus was not without concerned relatives who eventually came to her aid from as far away as Germany . They were able to interest some dedicated Legal Aid attorneys to take her case. Eventually, the injustice was brought to the attention of Probate Judge Michael Brandt who held a further hearing on the matter where, incredulously, Ms. Claus's court-appointed lawyer actually argued against letting her "client" return home to Germany. Judge Brandt did realize what had been done to Ms. Claus and has now vacated his prior order and has allowed her to return home to Germany in time for her birthday on May 22.

Unfortunately, this is apparantly not a unique situation. In the absence of the passage of uniform guardianship laws, there will always be states where a hapless --but probably wealthy-- senior citizen can fall prey to greedy relatives who will try to use the law as a tool to seize his or her assets and --in effect-- bury them before they are dead.

Probate Court Upholds Wrongful Death Settlement Between Widow And Cruise Line

Philip Bernstein — 2008-05-08T11:43:53-05:00

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.

]]>Evidently, Mr. Smith disappeared from the couple's stateroom after a night of drinking aboard ship. Signs of a struggle combined with a large smear of blood on the side of the ship has left a cloud of suspicion over his death. Mr. Smith's family filed their own lawsuit and have objected to the fact that his widow has negotiated this settlement with the cruise line without their knowledge or involvement. The family's lawsuit was dismissed by a Florida Court but that determination is still up on appeal

With the FBI still investigating the circumstances of Smith's disappearance and with charges and counter charges continuing to fly, this case is a long way from over.

There's Many A Slip In The Creation Of A Valid Trust

Philip Bernstein — 2008-05-01T22:59:03-05:00

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 .

]]>Apparently, after Anna received a property tax rebate payable to her as trustee, she re-conveyed the house back to Lucy who subsequently conveyed the property to her daughter, Lucille . This turn of events prompted son Ralph to bring suit for a judgment voiding the conveyance which Lucy had made to her daughter. DiGiacomo countered with a request that the court declare the deed valid and the trust invalid.

That is, in fact, just what the Kings County Supreme Court did -- with the Appellate Division affirming the lower court. The decision noted that Section 7-1.17(a) of the Estates Powers and Trust Law requires that "a lifetime trust agreement must be in writing, and requires that it shall be executed and acknowledged by the initial creator and, unless such creator is the sole trustee, by at least one trustee thereof " in recordable form (which means in the same way one would have to execute a deed to real property in order to have a county clerk record the deed). The court also found that Anna and Lucy had no concept of what was being done insofar as the creation of the trust was concerned. Therefore, the trust was found to be invalid and the transfer of the deed to Lucy's daughter Lucille was upheld, even though that meant that Ralph -- a co-beneficiary under the trust -- would now get nothing.

This case underscores the many pitfalls which can invalidate a trust. One of the most frequent problems I have encountered is the "dry trust". This happens after folks have paid good money to a lawyer to draft a trust which is then properly executed by the trust's creator and the trustee. The problem is that no body ever gets around to actually placing the trust property into the trust. The end result is a failed trust.

The lesson to be learned here is that the follow-up after a trust is drafted can be just as important as the proper drafting of the instrument itself.

Objectants Fail To Establish Undue Influence Even Though Testator Suffured From Dementia

Philip Bernstein — 2008-04-30T23:15:57-05:00

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 .

]]>The objectant who claims undue influence or lack of capacity has the burden of proving his or her position. In this case, objectants offered medical records and depositions from various witnesses including physicians. The problem here was while this evidence indicated that the decedent was indeed prone to episodes of confusion and forgetfulness at a time contemporaneous with the making of her will, her dementia was not diagnosed until April, 2003 which was a full year after she made her will. The court went on to opine that "proof that decedent suffered from old age and chronic , progressive senile dementia when the will was executed is not inconsistent with testamentary capacity". In addition, the court found that the objectants failed to prove that the testator "was actually constrained to act against her will and desire by identifying motive, opportunity, and acts allegedly constituting influence, as well as when and where such acts occurred."

Surrogate's Decision Revives Prior Will

Philip Bernstein — 2008-04-24T22:01:47-05:00

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.

]]>"What!" you say?"How can such a thing be?" The problem here is that the three subsequent wills which were produced were not originals but were photocopies. Yet another (fourth) will was also produced. This one was the latest made by the testatrix. It was a holographic (handwritten) will but alas, it was not properly witnessed and could not therefore be admitted to probate. What's a Surrogate to do?

For one thing, Surrogate Eugene E. Peckham decided to rely upon a presumption in favor of testate distribution and against intestacy. Searching for the clear intent of Ms. Sharp, he determined that since she had made a will, she did not intend to die intestate. Taking this route of supposition to the next level, the court also surmised that the testatrix had relied on her holographic will to be admissible to probate. Therefore, the standard provision in the will which revokes all prior wills and codicils was found to be conditional upon the will's viability. Once it was determined that the handwritten will was not executed with the formality required by law, the court looked back past the three photocopy wills to the original copy of the will which was duly executed and witnessed . It was this revoked will which was then revived and admitted to probate. This was a 1974 will which , the Surrogate found, met the test posed by SCPA 1408 which provides that the Surrogate "must be satisfied with the genuineness of the will and the validity of its execution."

For the record, there is a line of cases in direct opposition to Surrogate Peckham's decision. These cases would have led to a determination that Juliana Sharp died intestate.

Before you come to any conclusions of your own, consider all of the life changes that have occurred to you in the past thirty four years. In such a time span marriages come and go (sometimes several times). Some unfortunate children are born only to pass away in adulthood leaving children of their own behind. Adorable little kids grow into disloyal rogues. Fortunes are made and lost. Certainly one's attitude and outlook about the contents of one's will must change during this time as well. Maybe intestacy is an appropriate outcome rather than a set of testamentary instructions written nearly two generations ago.

Will this case be appealed? If so, will the decision be affirmed or reversed? Will this ancient thirty four year old will survive four subsequent wills? Stay tuned.

George Washington's Will

Philip Bernstein — 2008-04-18T13:27:44-05:00

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!

]]>Even though it may seem like a good idea to reach beyond the grave and require that disputes involving estates be arbitrated rather than litigated, this would be in clear conflict with the laws of New York which prohibit arbitration in such situations. Obviously, this might deny the Surrogate the power to review the conduct of fiduciaries acting in place of the decedent and to force them to account where necessary. If arbitration were to be allowed, it might compromise the rights of infants or of creditors of the decedent.

It is also important to keep in mind the fact that the driving philosophy adhered to in Surrogate's Court is to determine and achieve the true desires of the maker of a will. Therefore, while the intention of a testator to have disputes settled by arbitration could be achieved by enforcing such a clause, there is no guarantee that the arbitration process would operate successfully to determine and to achieve the overall intention of the testator insofar as distributing his or her assets would be concerned.

Courts have held , however, that where one has entered into an enforceable agreement during his or her lifetime, arbitration clauses in that agreement will be upheld. Therefore, the estate will be required to be involved in the arbitration of disputes arising under such a contract.