When a Will is offered for probate that either treats certain family members disparately or completely disinherits one or more siblings in favor of another, the claim of undue influence is quick to be injected into the family feud which invariably results (assuming it has not been percolating for some time prior to the decedent’s death). However, as shown by a recent Appellate Division decision in the Estate of Dorothy Greenwald 849 N.Y.S.2d346(A.D.3rd Dept 2008) , it is much easier to claim undue influence than to prove it.Continue Reading Appellate Division Fails To Find Undue Influence

Nassau County Surrogate John Riordan’s decision in the Matter Of Joseph Seviroli has been affirmed by the Appellate Division of the New York State Supreme Court. The case is reported at 844N.Y.S.2d 115 (A.D. 2 Dept 2007) and holds that a properly drawn, executed and acknowledged  waiver of a surviving spouse’s right to an elective share of the estate of the deceased spouse will be seen as valid and enforceable.
Continue Reading Appellate Court Upholds Waiver Of Spousal Right Of Election

The issue of competence is quite often at the center of will contests. Until it can be proved otherwise, the mental competence of the decedent is presumed. Rebutting this presumption is entirely the burden of the objectant to a will — and it is a heavy burden to overcome, but sometimes there may be ways of accomplishing this.
Continue Reading Some Pointers About Rebutting The Presumption Of Competence

Sometime ago, I reported here about the case of Ava Baker, a Brooklyn home health aide who had maneuvered her way into the will of her  88 year old charge, causing him to thoroughly abandon an established testamentary scheme. Now, the Supreme Court’s Appellate Division has agreed with and upheld Kings County Surrogate Tomei in the Matter of Martin Neary, deceased 843 N.Y.S.2d 689 (A.D.2 Dept 2007)  affirming the Surrogate’s finding that the will should be set aside by reason of undue influence.
Continue Reading Decision Of Undue Influence By Home Health Aide Sustained On Appeal

Personal Injury cases do not often find their way into a probate and estate blog but the recent decision of the  Second Department of New York Supreme Court’s Appellate Division in Stinton V. Robin’s Wood rates a special mention. The case is first reported on page one of the New York Law Journal on Sept. 25 and  the decision will be published in full on Sept. 27. This action involved a prior claim by the decedent, Ethel Flanzreich, for damages suffered in a fall in August 2001.
Continue Reading Future Pain Award Survives Death Of Beneficiary

Kings County Surrogate Lopez-Torres has ruled against a wife attempting to set aside a prenuptial agreement in the Estate of Joseph Menahem. In a decision reported in the New York Law Journal on September 10th the court declined to nullify the agreement on grounds of undue influence, fraud or the lack of mental capacity to knowingly execute the agreement.
Continue Reading Wife’s Bipolar Disorder Held Not To Affect Judgment –Prenuptial Agreement Upheld

The Surrogate of New York’s Onandaga County has issued a ruling in the Matter of Probate Proceeding of the Will of Sylvia P. Huntington  839 N.Y.S. 2d 909 that a professional corporation was not a "natural person" eligible to serve as executor of a will
Continue Reading Professional Corporation Held To Be Unqualified To Serve As Executor Of Will

The Third Department Appellate Division of the New York State Supreme Court has made an unusual ruling in the Matter of Palma, NY Slip Op 03805. It has upheld a decision of the Schenectady County Surrogate which granted a motion to remove a preliminary executrix without first holding a hearing. The lower court had found that the preliminary executrix was conflicted to the point where she could not serve as a fiduciary.
Continue Reading Surrogate’s Removal Of Preliminary Executor Without A Hearing Is Affirmed