There is an art to writing so that folks understand exactly what you mean to say and not everyone has that talent. Lawyers included. Just because an attorney has drafted a will does not mean that he or she has done a good enough job to resolve all questions as to what its maker has intended. Consider that the maker is the one person who can give us the best idea as to the aim of the will —-and he or she is dead.
Continue Reading Construing a Will

In In Re Estate of Edith R. Korn , 2006 Slip Op 117, The First Department of the Appellate Division of the New York State Supreme Court has affirmed a decision of New York County Surrogate Eve Preminger which granted summary judgment an dismissed objections to a probate petition .
Continue Reading Summary Judgment Dismissing Will Challenge Upheld

On January 24, 2006 the New York State Supreme Court Appellate Division , Second Department issued a decision in the Matter of James E. Davis , Deceased which speaks to the right of a purported non-marital child to DNA testing in order to establish paternity.
Continue Reading Court Permits Posthumous DNA Testing to Establish Paternity of Non-Marital Child Seeking Distributive Share of Estate

Earlier this month, I reported ( The Estate of Mary Fischer in December 9th’s New York Law Journal) a case where a dishonest home health aide was compelled to return stolen assets to the her former employer’s estate. Well, there seems to be a lot more of that sort of thing going around lately as may be seen in The Estate of Martin Neary which was decided by Surrogate Tomei in Kings County (Brooklyn) and reported in the December 19th New York Law Journal (p.40).Martin Neary , an 88 year old attorney had died without a spouse or children . A month earlier, he had executed a will leaving most of his nine hundred thousand dollar estate to his home health attendant, Ava Baker. Objections to the will were filed both by the decedent’s cousin and the Public Administrator and ultimately, a trial was held to determine the issues that had been raised.
Continue Reading “Caregiver-Elderly” Relationship Found to Be Highly Confidential and Warranting Close Scrutiny

A rather offbeat decision from New York’s Appellate Division was recently handed down on December 1st in the Matter of the Estate of Howard Fischer,Deceased 2005 NY Slip Op 09173. Even though the decedent passed away in 1993, his executrix declined to offer his will (which was executed in 1976) for probate. The will left everything to the surviving spouse with the knowledge that she would “provide for our children”.
Continue Reading Court Foils Ingenious Attempt at Post-Mortem Estate Planning

When an estate’s fiduciary believes that substantial assets have been wrongfully taken during a decedent’s lifetime or from the estate itself, the remedy is generally to commence a turnover proceeding pursuant to section 2103 of the Surrogate’s Court Procedure Act. After the property which the fiduciary has alleged had belonged to the decedent is identified , the respondent in the proceeding is obliged to establish that he or she has the right to remain in possession.
Continue Reading Turnover is the Recipe for Dishonest Housekeeper

While the standard rule of thumb is that the use of a power of attorney by its holder to make gifts to him or herself is an improper abuse, New York’s Appellate Division’s recent decision in the Matter of George J. Ferrara , 802 N.Y.S. 2d 471 (A.D. 2 Dept 2005) has come to a different determination.
Continue Reading Court Permits Self-Gifting Pursuant to Power of Attorney

New York City’s Civil Court is the busiest on the planet so it is easy to believe that some really weird things happen there. Legal -but logical- weirdness was the order of the day in Bianco v. Pierre 1450/00 (reported in the New York Law Journal on November 15,2005) which involved a garden-variety automobile accident case where a plaintiff passenger was seeking damages from the owner of the taxicab in which he had been injured when the accident occurred.
Continue Reading Court Appoints Insurer’s Attorneys as Defendant’s Administrators