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

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.
Continue Reading Court Of Appeals Reversal Denies Share Of Jello Trust To Adopted -Out Child

A recent and worthwhile posting by fellow lawblogger Leanna Hamill on her Massachusetts Estate Planning and Elder Law  Blog speaks to the estate complications that may arise in a divorce. Those of us who practice matrimonial law are all too familiar with the hazards and pitfalls that divorce poses.
Continue Reading Divorce And Its Impact On Your Estate

We always warn our clients about the need to take appropriate steps to shelter assets from medicaid claims when one spouse spends considerable time in skilled nursing care. The Third Department of New York’s Appellate Division has affirmed a lower court decision in In Re Estate of Tomeck  846 N.Y.S. 2d 693 which determined that the Surrogate’s Court lacked personal jurisdiction over an irrevocable trust created by the decedent during her lifetime.
Continue Reading Irrevocable Trust Held To Insulate Estate From Medicaid Claims

Fellow lawblogger Joel Schoenmeyer’s Death and Taxes Blog calls attention to yesterday’s excellent Wall Street Journal article on Powers of Attorney. The latest news coming out about the arrest and indictment of the late Brooke Astor’s son Anthony Marshall   together with her former attorney Francis X. Morrissey Jr. highlights the need for vigilance in…

An article in the Michigan Telecommunications and Technology Law Review raises the possibility that someday we will be dealing with electronic wills which,  Keven DuComb reports are currently legal (although subject to severe requirements) in the state of Nevada. With this genie apparently emerging from the bottle, one can only begin to imagine the…