December 2008

If you don’t like dog puns, you might want to stop reading now.

Hotelier and real estate magnate Leona Helmsley loved dogs and she made no bones about it. Leona Helmsley left $12 million in her will in trust for her dog, Trouble. And, although Surrogate Renee Roth reduced the trust to $2 million, that amount should still be sufficient for Trouble to live, well, a dog’s life for her remaining years. (After all, Trouble’s annual living expenses have been estimated at only $180,000.)

The amount of the Trouble Trust, however, pales in comparison to the full amount of the charitable trust Mrs. Helmsley created — valued at between $5 billion and $8 billion. In a two page “mission statement,” Mrs. Helmsley expressed her desire that the money be used for the care and welfare of dogs. (Actually, it has been reported that she initially stated that the money should go to poor people and dogs, but she later turned tail on poor people, dropping them from the list.)

 Continue Reading Leona’s Wishes May be Thrown To The Dogs

Recent developments in the Martin Tankleff murder case have captivated court observers in New York and attracted the attention of national news media outlets. For the most part, the observers have focused their attention on issues of criminal law, like newly-discovered evidence and the reliability of allegedly false confessions. Yet, the case also has potential trusts and estates-related consequences.

This much we know: Mr. Tankleff’s parents were killed on September 7, 1988 (see People v Tankleff, 49 A.D.3d 160, 162-64 [2d Dep’t 2007]). After an investigation, the police arrested Mr. Tankleff for murdering his parents, prosecutors tried him for the murders, and a Suffolk County jury convicted him of the offenses (id.). In the days, months, and years that followed, Mr. Tankleff and his legal team launched an exhaustive campaign to overturn his convictions on the basis of newly-discovered evidence, which Mr. Tankleff asserted established his innocence (id.). The Appellate Division, Second Department, issued an Order vacating Mr. Tankleff’s judgments of conviction in December 2007, id. at 183, and prosecutors elected against retrying Mr. Tankleff in June 2008 (see Luis Perez, “AG won’t retry Tankleff – or any other suspects,” Newsday, June 30, 2008).

Continue Reading Is Justice Delayed Justice Denied?

Be careful before you start answering this question.  When it comes to applying CPLR §4519, commonly referred to as the Dead Man’s Statute, easy answers are sometimes hard to find.

CPLR §4519 precludes testimony upon an objection at “the trial of an action or the hearing upon the merits of a special proceeding,” where 1) the witness has a financial  interest in the outcome of the litigation; 2) she is to be examined about a personal transaction or communication of the decedent; 3) she is to be examined as a witness on her own behalf; and, 4) the testimony sought to be elicited is against the fiduciary or survivor of the decedent or a person deriving his title from the decedent. The principle purpose of the statute is to prevent fraudulent claims which could easily be asserted against a decedent’s estate – since the decedent cannot give his version of the transaction or conversation, the financially interested witness is not permitted to give her version. There is no shortage of commentary concerning the Dead Man’s Statute and a great number of cases examine its application (see Matter of Wood 52 NY2d 139 [1981]; Sepulveda v Aviles, 308 AD2d 1 [1st Dept 2003];Matter of Radus, 140 AD2d 348 [2d Dept 1988]; Matter of Miller 97 AD2d 581 [3d Dept 1983]; Estate of Breitman, 4/7/99 NYLJ 35, [col. 5] [Sur Ct, Nassau County 1999]; Matter of Dunbar, 139 Misc 2d 955 [Sur Ct, Bronx County 1988]; See also Radigan, The Dead Man’s Statute – Alive and Well in the Surrogate’s Court, 50 NY St BJ 470 [1980];  Brooks, It’s Time to Kill the Dead Man’s Statute, NYLJ, July 18, 1988, at 1, col 1).   

By its plain language, CPLR §4519 has no application at any stage of a proceeding or action other than at “a trial or a hearing on the merits.” It is clear that the statute has no application during pre-trial discovery at a deposition pursuant to Article 31 of the CPLR. Similarly, it has no application in examinations held pursuant to SCPA §§1404, 2211, or at an examination during the inquisitorial stage of a discovery proceeding (see Philips v Kantor & Co., 31 NY2d 307 [1972]; Lemlich v Lemlich, 266 AD 748 [2d Dept 1943]; Wall Street Assoc. v Brodsky, 295 AD2d 262 [1st Dept 2002]). 

 Continue Reading What is a Trial or Hearing on the Merits?

Should a surviving spouse remain entitled to an elective share even if the marriage was procured by fraud or undue influence exercised upon the decedent, or if the decedent was incapacitated at the time of the marriage?  In a recent case, Matter of Berk (20 Misc 3d 691 [Sur Ct, Kings County 2008]), the decedent’s estate opposed his widow’s notice of election alleging that circumstances of the marriage rendered it null and void ab initio, thereby eliminating her rights pursuant to EPTL 5-1.1-A.  She moved for summary judgment. 

The decedent died in 2006, leaving a will dated July 10, 1982.  The marriage occurred almost exactly one year prior to the decedent’s death; he was 99 at the time, she was 47.  Interestingly enough, the couple’s marital status had been concealed, and it was only after the decedent’s death that his family learned of the situation.  According to the estate, at the time of the marriage the decedent lacked the requisite mental capacity “to understand the nature, effect and consequences of marriage, or to enter into a marriage contract” (id.).  The estate further claimed that the evidence suggested that the decedent’s consent to the marriage was obtained by force, duress or fraud exercised by his widow.  The Court held that even assuming the truth of these allegations, they were irrelevant on the motion for summary judgment, and granted the widow her elective share.Continue Reading Right of Election Granted Despite Evidence of a Voidable Marriage