Parents of a decedent, as administrators of his estate, recently sought ownership rights to the decedent’s frozen sperm specimens in hope of ultimately having a grandchild by a surrogate. The First Department’s decision is explained in this week’s entry.
Continue Reading Parents of Decedent Have No Rights to Preserved Reproductive Tissue

Governor Paterson has signed legislation extending the effective date for the new Power of Attorney statute from March 1, 2009 to September 1, 2009.  This provides an additional six months to learn about the significant amendments to GOL 5-1501, which were summarized in a previous posting.   

It might well be an understatement to characterize New York’s Dead Man’s Statute (CPLR 4519) as somewhat “enigmatic,” at least to those practitioners who do not often encounter it. Indeed, the leading treatise on the statute is over three-quarters of a century old (see Greenfield on Testimony under Sec. 347 (CPA) § 61 [1923]).

This article contains a brief overview of the statute and more thorough discussion of its application to motions for summary judgment.

Generally — and perhaps overly simplistically — the Dead Man’s Statute renders an interested person incompetent to testify concerning a personal transaction (including a communication) with a deceased or mentally ill person. Such evidence is freely discoverable, however, and may be the subject of testimony at a deposition. Indeed, the rule applies only “upon the trial of an action or the hearing upon the merits of a special proceeding” (CPLR 4519).   

 

 Continue Reading Inter Vivos Gifts, Summary Judgment, and the Dead Man’s Statute

A recent decision from the Westchester County Surrogate’s Court, Edelman v Hatami is an entertaining read. The decision addresses the Statute of Frauds, and provides a good example of how litigants will attempt to employ the equitable doctrines of promissory estoppel and constructive trust in estate litigation. 

In Edelman the defendant sought recovery against a decedent’s…