The Nassau County Surrogate’s Court recently addressed an application to vacate a deed that purported to convey real property from the decedent to his wife. At issue was the element of delivery. Eric Penzer discusses the decision in this week’s entry.
Continue Reading Decedent’s Purported Transfer of Residence To Wife Fails For Non-Delivery of Deed
In Estate of Aoki, the New York County Surrogate’s Court recently denied a motion for summary judgment to enforce a waiver of a testamentary power of appointment that had been signed by the decedent. Eric Penzer discusses the decision in this week’s blog entry.
Continue Reading Fiduciary Relationship Leads to Allegations of Constructive Fraud
Last week, the Second Department overturned a determination of the Kings County Surrogate’s Court that had disqualified an executrix based upon her selection of counsel. But while holding that letters should be reinstated, the Appellate Division also directed the fiduciary to obtain new representation. Eric Penzer discusses the decision in this week’s entry.
Continue Reading Estate Fiduciary Wrongly Deprived of Counsel of Choice?
Surrogate Riordan of Nassau County recently issued a decision declining to expand the reach of the “after born statute” to non-marital children, acknowledged by the decedent only after his will had been executed. Eric Penzer discusses the case in this week’s entry.
Continue Reading No “Wiggle Room” In After-Born Statute
This week’s entry discusses a recent decision from the Southern District of New York in which the plaintiff asserted he was the son of John F. Kennedy and Marilyn Monroe, and sought to compel distributions from the late president’s testamentary trust. Especially relevant to the trusts and estates litigator is the discussion of the probate exception to federal diversity jurisdiction.
Continue Reading Ask not what your Trustees can do for you…
This week’s entry discusses a recent decision rejecting an executor’s attempt to “sell” the decedent’s house to herself for the price of $10.
Continue Reading Court Rejects Executor’s Attempt to Sell House To Herself For $10
This week’s entry discusses a recent case in which a decedent’s estate planning documents were relevant in determining the outcome of a corporate dispute.
Continue Reading Court Considers Estate Planning Documents In Deciding Corporate Dispute
This week’s post informs readers of the recent New York County Surrogate’s Court decision regarding whether the trustees of Leona Helmsley’s charitable trust must actually use its funds for the care and welfare of dogs.
Continue Reading A Sop For Cerberus
This week’s entry discusses a recent decision on an application for the advance payment of executor’s commissions, and the power of beneficiaries to override a testator’s intent.
Continue Reading Executor Granted Advance Payment Of Commissions Despite Prohibition In Will
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