Given the travel restrictions that have arisen during the COVID-19 pandemic, it is unlikely that many recently-commenced adult guardianship proceedings have led to jurisdictional disputes in courts in different states. Pre-pandemic, however, in anticipation of commencing adult guardianship proceedings, parties moved the subjects of those proceedings from one state to another, presumably to gain a strategic advantage in forthcoming guardianship disputes. In Matter of J.D.S., New York County Surrogate Rita Mella rendered what appears to be the first reported decision addressing whether a court in New York, or another state, was the appropriate forum for a guardianship dispute concerning a person under a disability. Rob Harper discusses the decision in our latest post.
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Admission of Remotely Witnessed Will to Probate
In April 2020, Governor Cuomo issued Executive Order 202.14, authorizing the remote witnessing of wills in the midst of the COVID-19 pandemic. Earlier this week, Broome County Surrogate’s Court issued what appears to be the first reported New York decision addressing the admission to probate of a remotely witnessed will. Rob Harper discusses the decision in our latest post.
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Non-Marital Child’s Legitimacy is Presumed for All Purposes of New York Law, Including Inheritance, When Parents Marry After the Child’s Birth
When a child is born to parents who are not married, the child often must satisfy the provisions of EPTL 4-1.2 to inherit from the estate of his or her father. However, the Appellate Division’s recent decision in Tiwary v. Tiwary has held that a child born of parents who are not married at the time of the child’s birth, but subsequently marry each other, generally need not satisfy the statute. Rob Harper discusses the decision in our latest post.
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TO INFINITY AND BEYOND (OR AT LEAST APRIL 18, 2020): NEW YORK STATE LAW TEMPORARILY AUTHORIZES THE REMOTE NOTARIZATION OF DOCUMENTS
On March 19, 2020, Governor Cuomo issued Executive Order No. 202.7, which temporarily authorizes the remote notarization of documents in New York until April 18, 2020. Rob Harper provides a summary as to its contents in our latest post.
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Hasta La Vista, Exoneration Clauses
In late-August 2018, Governor Cuomo signed into law amendments to EPTL § 11-1.7 regarding exoneration clauses in lifetime trusts, drafted by Rob Harper and Ilene S. Cooper as members of the New York State Bar Association’s Trusts and Estates Law Section. Rob Harper discusses the amendments in our latest blog post.
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You’ve Got (E-)Mail! Can Your Survivors Access It After Your Death?
E-mail is seemingly omnipresent. Yet, the improvements to the technology associated with e-mail have far outpaced the development of the law concerning our e-mail accounts and the rights that our survivors may have to access those accounts upon our deaths. In this post, Robert Harper addresses New York’s recently-enacted digital assets legislation, as well as Surrogate Mella’s decision in Matter of Serrano, which appears to be the first reported case to apply that legislation.
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Jury Trials in Surrogate’s Court Removal Proceedings
As parties prepare for trial before the Surrogate’s Court, a question that oftentimes arises is whether there is a right to a trial by jury. In this entry, Robert Harper explains why no such right exists in the case of proceedings concerning the removal of a fiduciary.
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In Terrorem Provisions That Violate Public Policy
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.
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Testamentary Capacity, Summary Judgment and a Testator’s Diagnosis of Dementia
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.
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The Slayer Rule Revisited
As I wrote in a prior post, dated February 25, 2011, concerning the Estate of Dianne Edwards, the “slayer rule” articulated by the Court of Appeals in Riggs v. Palmer provides that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found