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
Standing of “Potential Heirs” to Sue for Their Parents’ Assets
Estate litigation oftentimes arises when parents favor one or more of their children over others in their estate plans. Fortunately, at least for the parents, they typically do not have to deal with the issues involved in the litigation, as they are deceased by the time that it arises. As the Second Department’s decision in
Unlawful Marriages and the Right of Election
In our latest entry, Rob Harper discusses Surrogate Czygier’s decision in Matter of Newman, a case addressing the validity of an elective share.
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Revoking Marriages in Article 81 Proceedings
This week, Robert Harper discusses the circumstances under which a marriage may be revoked in the context of an Article 81 guardianship proceeding.
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More Tales from the Crypt: The Right of Sepulcher, Decedent’s Intent and Disposition of Human Remains
In a prior post, Robert Harper explained the law on the disposition of human remains in New York. This week he follows up on that topic, discussing a recent Nassau County Supreme Court decision, Matter of Grace D. There, the court addressed a disagreement among the decedent’s family members as to the disposition of her remains.
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