New York’s Appellate Division recently affirmed a decision of Nassau County Surrogate John Riordan which disinherited the daughter of a decedent who had brought a petition to contest her father’s will and for a construction of the residuary clause which left $221,000 to various charities. In the Matter of Bernstein  2007 NY Slip Op 04625, in addition to this charitable bequest, the sum of $20,000 was left to each of the decedent’s children. The will also contained an in terrorem clause which provided that anyone challenging the will would forfeit any interest they might otherwise have had in the decedent’s testamentary estate. By violating the in terrorem clause, petitioner lost any interest she might have had in her father’s estate. Therefore, the court went on to find that she did not have any standing to sue.

It should be noted that generally, courts will not hear a petition of a party who does not have an interest in the matter over which they are suing. Once, petitioner unsuccessfully challenged the will, she also lost any standing which she might have otherwise had to bring any legal proceeding in the matter.

A recent article in theTacoma News Tribune about celebrity estates makes for some interesting reading. Not only does the public gravitate towards the news of a celebrity’s death and the aftermath but also, this often provides some "teachable moments". In soaking up every piece of news available about Anna Nicole Smith, James Brown or Michael Jackson, we learn the consequences of sloppy (or no) estate planning and how to avoid them in our own less public lives.

This is not my first article about the current failure of our Congress to act on the replacement of the estate tax which expired at the end of last year and I am certainly not the only one following this oddity. All of a sudden it has dawned on me that maybe the lack of Congressional action is not so much a failure of Congress to get its act together as it may be a focused plan to back into what would become a massive tax increase b y doing nothing.

Continue Reading What’s Going On Here? Looks Like A Back-Door Tax Increase!

When leaving large sums of money and property to children, keep in mind that they are not legally able to control and use these assets until they are eighteen. Also consider that the amount of money left to them may well be directly proportional to the price of the sportscar they purchase on their eighteenth birthday.

Continue Reading Points On A Minor’s Trust

 

One of the most frequent inquiries I get as an attorney involved in the area of contested estates involves issues of alleged undue influence. I say "alleged" because the public perception of  undue influence is often far removed from its true legal definition. Since many savvy trial lawyers often prepare their cases from the start with an eye to the charge which the judge will give a jury, it is useful to look at undue influence from that angle. One of the best ways to do that is by going directly to section 7:55 of the "Pattern Jury Instructions" (from which I am liberally quoting in this article) that courts rely upon to explain legal issues to the juries who must decide them.

Continue Reading Undue Influence As Reflected By A Jury Charge

In December 2008, Surrogate – elect Nora Anderson was indicted for allegedly failing to properly report at least a quarter of a million dollars in campaign contributions. While Ms. Anderson contended that this money came from her own personal funds, prosecutors have alleged that the true source of the contributions was Seth Rubinstein, her eighty two year old law partner and mentor. According to theNew York Times, this case raises some unusual questions about what happens when funds claimed as gifts are utilized in a campaign.

Continue Reading Criminal Trial Of Manhattan Surrogate Begins

Who’da thunk that we would be almost to April and a bill to re-institute the federal estate tax isn’t even on the radar screens down in Washington?  The estates of those dying since January 1 owe no federal estate taxes and there is nothing on the horizon which indicates that this may change soon. In a nation that seems to prefer rich desserts to vegetables, rejoicing over this tax holiday may be a bit premature  –and our current estate tax situation certainly carries with it some unintended risks which should be of some concern.

Continue Reading Failure To Revise Estate Tax Law Has Unintended Consequences

Nassau County Surrogate John Riordan has found that an objectant in the Matter of the Estate of Willie Stewart,340211 successfully established that she and her son were distributees of the decedent, notwithstanding the fact that his death certificate provided otherwise. While there is a strong presumption as to the information contained in a death certificate, the court was clear to point out that while the document is proof of the cause of death stated therein, collateral facts which it contains may be subject to rebuttal.

Continue Reading Presumption Of Death Certificate Is Rebutted

In a special bulletin, the New York Times has just reported that Anthony D Marshall, son of the late socialite Brooke Astor has been sentenced to prison by a New York State Supreme Court Justice. Marshall was sentenced to one to three years in state prison by Justice A. Kirke Bartley Jr. after being convicted of stealing millions from his mother while she was alive. The case drew national attention first when it came to light that Marshall had kept his mother as a virtual prisoner, left to wallow in her own waste. The case focused attention on the growing problem of elder abuse, demonstrating that even super rich seniors such as Brooke Astor were subject to being severely mistreated by their own families. Marshall, who is 85 years old, has vowed to appeal the verdict so, given his advanced age and the legal firepower available to him, it is anyone’s guess when he will actually report to start serving his sentence .

 

Your faithful lawblogger has recently prepared and given a podcast on  the new statutory Power of Attorney in effect here since September 1. It led me to further thoughts over just what some of the implications of this new power may pose for lawyers and clients alike. Three months after the effective date, it is clear that most of the profession has barely yawned but make no mistake about it, even though it is still evidently under the radar, a quiet revolution in an important segment of the practice of law has taken place.

 

Continue Reading Ruminations On New York’s New Power Of Attorney