The Third Department of New York’s Appellate Division has upheld a decision of the Albany County Surrogate which granted summary judgment and dismissed objections to the probate of a will in the Matter of Turner      recently decided on November 6, 2008. Interestingly enough, the objections failed to challenge the testamentary capacity of the testatrix while claiming that she suffered from "insane delusions" and was the subject of undue influence.Continue Reading Objectant Fails To Establish That “Insane Delusions” Warranted Denial Of Probate

Your faithful lawblogger was pleased to end up on the long side of an interesting decision from Nassau County Surrogate John Riordan in the Matter of Estate of Rose Rappaport , 866 N.Y.S.2d 483 which was published in the New York Law Journal on October 23. The decedent had executed a will which provided that the bulk of her estate would be paid into a testamentary trust for the benefit of her daughter Susan who is partially blind ,suffers from a host of physical and emotional disabilities and is unable to care for herself. While the will named Susan’s three siblings as executors, it totally failed to nominate any trustees. When I first was given the instrument to offer for probate, my first impression of the inartfully drawn will was to compare the trust to a staircase leading to a landing — and stopping there! Obviously, it was necessary to petition the court for a will construction to reform the will.Continue Reading Surrogate Directs Will Be Reformed To Include Supplemental Needs Trust

A recent decision by the Second Department of New York’s Appellate Division in The Matter of Dubin reported as Slip Opinion 07126 on September 23rd overturned a decision of Nassau County Surrogate which found that a joint account with right of survivorship had passed outside of the decedent’s estate and was not a testamentary asset.Continue Reading Appellate Court Directs Turnover Of Joint Account

For those of you who may be wondering if I fell off the end of the earth, your faithful law blogger has returned after a long vacation –and all of the work that needs to be done before and after a break (yes, it was worth it, but sometimes a bit hard to tell). Our state legislature, in a fairly uncharacteristic display of get-up-and-go, has given us an important new piece of legislation to digest this summer.Continue Reading Legislature’s Amendments to Law Impact Estates

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.
Continue Reading Brooklyn Surrogate Awards Elective Share Of 100 Year Old’s Estate To 47 Year Old Nurse/Wife After Deathbed Marriage

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 . 
Continue Reading There’s Many A Slip In The Creation Of A Valid Trust

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

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!
Continue Reading George Washington’s Will