2014

In terrorem clauses generally provide that, where a beneficiary under a testamentary instrument unsuccessfully challenges the instrument’s validity, the beneficiary will forfeit any interests obtained under the instrument. Testators include in terrorem clauses in their wills in order to dissuade estate beneficiaries from taking action that is contrary to the testators’ wishes, as expressed in their testamentary instruments. While a paramount objective of the Surrogate’s Court is to act according to testators’ wishes, in terrorem clauses must be narrowly construed, and certain in terrorem provisions are violative of public policy. In our latest post, Rob Harper provides examples of in terrorem clauses that contravene public policy and, thus, are unenforceable under New York law.
Continue Reading In Terrorem Provisions That Violate Public Policy

New York’s “slayer rule” essentially provides that if an individual kills another person, he has automatically forfeited any interest he may have had in his victim’s estate. The rationale is simple – no one should financially benefit from his own crime. Applicability of the rule is generally straightforward, but in certain cases, the lines can become blurred — such as in Matter of Edwards, where the killer sought to inherit from his victim only indirectly, through the estate of the victim’s post-deceased daughter. Jaclene D’Agostino discusses the decision in our latest entry.
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Continue Reading Appellate Division Upholds Equitable Extension of Slayer Rule

In a decision that could well cause even the most casual trusts and estates practitioners to scratch their proverbial heads in wonder, the Appellate Division, Third Department, in Matter of Buchting, 111 AD3d 1114, 975 NYS2d 794 (3d Dept 2013), recently affirmed the determination of the Surrogate’s Court, Greene County, dismissing a “due execution” objection to probate, notwithstanding that both attesting witnesses invoked their Fifth Amendment rights against self-incrimination and refused to testify at their SCPA 1404 examination concerning the execution of the will. Eric Penzer discusses the decision in our latest entry.
Continue Reading “Easy” Cases Make Bad Law Too

Although summary judgment in a contested probate proceeding historically has been rare, the recent trend has been for Surrogate’s Courts to grant such relief with increasing frequency. Consistent with that recent trend, Surrogate’s Courts have granted summary judgment dismissing probate objections alleging that a testator lacked testamentary capacity, notwithstanding the testator’s diagnosis of dementia before executing the propounded will. Our latest entry, written by Robert M. Harper, discusses several cases in which a testator’s diagnosis of dementia prior to executing the propounded will was insufficient to raise a triable issue of fact to withstand summary judgment dismissing a capacity objection.
Continue Reading Testamentary Capacity, Summary Judgment and a Testator’s Diagnosis of Dementia

Two recent decisions from the New York County Surrogate’s Court attempt to answer this question. In Estate of Weisberg, decided on April 8, 2014, the court addressed the issue of marriage. Faced with competing petitions for letters of administration, the court was asked to find as a matter of law, that the cross-petitioner was the decedent’s wife and sole distributee of the decedent’s estate. In Levien v Johnson, decided on April 14, 2014, the court considered whether two adults adopted by the decedent’s grandchildren constituted “great-grandchildren” under the decedent’s will. In both cases, the court was asked to find that these familial relationships existed as a matter of law. Hillary Frommer discusses the decisions in our latest entry.
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Continue Reading To be Family or Not to be Family? That is the Question

A donor writes in a pledge amount, signs the pledge card, hands it over to the charity, and is absolutely committed to that amount; end of story, right? Not necessarily. A recent case emanating from Kings County Surrogate’s Court, Matter of Issac Kramer, shows that certain charitable pledges may not be as binding as they appear on paper. Spencer Reames discusses the decision in our latest entry.
Continue Reading Charitable Pledges: Not Found Money, You Have to Earn Them

Eric Penzer recently discussed a case where constructive abandonment was asserted to disqualify a surviving spouse from an elective share. In our latest entry, Eric addresses a decision regarding actual abandonment as the basis for disqualification, and the hurdles that parties involved with such a claim may face.
Continue Reading Appellate Division: Issue of Fact Prevents Summary Disposition of Abandonment Allegations