Articles Posted in Advanced Health Care Directives

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Indicted for multiple counts of handgun possession and a single count of possession of weapons with intent to sell, the defendant, waived a jury and the case was tried by the court. Decision was reserved pending submission of briefs. This is the decision and its reasoning.

The case could have been tried on an agreed statement of facts; the only issue for the court to decide and upon which my decision turns is the defendant’s state of mind during the time he purchased and stored the handguns. On April 15, 1985, pursuant to a search warrant, officers of the New York City Police Department searched the defendant’s room in a YMCA and recovered 14 handguns and a quantity of ammunition. The defendant had been employed as a cab driver and hoped to open a sporting goods store; the weapons had been purchased as stock for the yet to be opened store. The police learned of his cache through his procurement of the necessary federal licenses to make the initial wholesale purchases.

On March 25, 1985, a federal inspector visited his room at the “Y” to conduct an administrative inspection of the premises listed on the defendant’s federal firearm’s license; two citations resulted. Defendant contested the citations in the form of a “Notice of disagreement” wherein he argued that since he was not presently conducting a retail business in his YMCA room, he was not in violation of the particular regulations; he served the notice upon both the federal agency and the Police License Bureau. The visit of April 15 was the official response.

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Motion is made to strike out a counterclaim interposed in this action wherein plaintiff seeks to compel defendants to deliver to her a bank passbook of an account in the Interest Department of the ABC Trust Company of Albany issued to and opened in the name of ‘Ms. B, in Trust for Ms. OD.’

Ms. OD is the plaintiff and Ms. B is now deceased. The defendant Mrs. V is the named executrix in the last will and testament of Ms. B, which has been offered for, but as yet has not been admitted to, probate. The co-defendant Mrs. M, an attorney, drew such will, was a subscribing witness thereto, and is acting as the attorney for Mrs. V in offering it for probate. It is alleged that such defendants have possession of the passbook, without which plaintiff cannot withdraw the fund, and that they have refused to deliver it to her upon demand.

The defendants’ answer admits all of the allegations of the complaint except that plaintiff ‘is entitled to possession of the said bank book’ and it also contains certain matter asserted as ‘a separate defense and by way of counterclaim.’ In that contention defendants allege the opening of the account by Ms. B in form in trust for plaintiff, as well as the making of the will hereinabove referred to. They further allege that objections to the probate of the will have been made by certain persons, to wit, KK, QQ and ET, who would be the intestate distributees of Ms. B, of whom plaintiff is not one; that such objections, among other things, challenge her testamentary capacity; that the funds going into the bank deposit set up for plaintiff derived from a sale of real property of the deceased, and that no part thereof ‘was produced or provided by the said Ms. OD;’ that the bank account was set up approximately two months prior to the execution of the will; that if such objections to it are sustained the validity of the disposition of the aforesaid bank account likewise will be attacked; that the defendants have been presented with adverse claims to the funds represented by such bank account by both plaintiff and such distributees of Ms. B, and that they ‘cannot determine, without hazard to themselves, the right of the said persons to the said property and are exposed to double liability as the result of such adverse claims.’ Defendants assert their willingness to deliver the passbook and the fund it represents to whomsoever shall be adjudged entitled to it. They allege that they have impleaded the distributees who make the adverse claims as aforesaid by service upon them of a summons and interpleading complaint, together with a copy of the original summons and complaint served upon them in this action.’

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A New York Probate Lawyer said the records reveal that in this contested probate proceeding, three motions are before the court. Decedent died and is survived by several brothers and sisters and by an alleged spouse, the objector herein, to whom she was married on August 8, 1953. The propounded paper, makes no provision for the objector and recites, as the reason therefor, the decedent’s belief that the objector was not truly her husband since he had previously been married. The decedent further expressed her belief that objector had abandoned his wife in Italy and that his first marriage had never been legally terminated.

A New York Estate Lawyer said that the issue has been joined by the interposition of an answer alleging lack of testamentary capacity, fraud, duress and undue influence and claiming an interest in the estate as the spouse of the deceased.

A Queens Probate Attorney said that the proponent now moves to dismiss the objections on the ground that objector has no status. The third motion before the court, submitted by the proponent simultaneously with his motion to dismiss the objections, seeks to examine the objector on the facts of the alleged prior marriage, the preliminary issue herein. The objector opposes this motion on the ground that ‘there is no authority for the taking of depositions for use upon a motion,’ citing Matter of Erlanger’s Will and Standard Foods Products Corp. v. Vinas Unidas.

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A Probate Lawyer said that, in a probate proceeding in which the administrator, in effect, petitioned pursuant to SCPA 1809 to determine the validity of certain claims against the estate of the decedent, also known as the petitioner appeals from (1) an order of the Surrogate’s Court, Kings County, dated April 27, 2009, which, in effect, denied that branch of the petition which was to invalidate the claim of the claimant, and directed that claimant be reimbursed in the sum of $4,474 for payment of the decedent’s funeral expenses, and (2) an order of the same court dated May 13, 2009, which denied her motion to vacate the order dated April 27, 2009.

A Kings Will Contest Lawyer said that in another case is (1) from so much of an order of the Surrogate’s Court, Kings County, entered July 8, 1965, as denied his cross motion for leave to take the further oral deposition of two persons as witnesses pursuant to statute (CPLR 3101, subd. [a], par. 4; 3111); and (2) from an order of said court, entered September 2, 1965, upon re-argument, which adhered to the original decision. Order entered September 2, 1965, affirmed with a separate bill of $10 costs and disbursements to the respondent and to the Special Guardian, each payable out of the estate. No opinion. Appeal from order, entered July 8, 1965, dismissed, without costs. The appeal was untimely taken. Appellant admitted receiving notice of entry of said order on July 13, 1965, yet his notice of appeal therefrom is dated September 9, 1965, clearly beyond the statutory time (CPLR, § 5513, subd. [a]). In any event, said order was superseded by the later order granting re-argument

A New York Estate Lawyer said the Surrogate’s Court properly determined that the claim against the estate by the claimant for reimbursement of the decedent’s funeral expenses, which expenses the petitioner conceded were paid by the claimant, was valid (see SCPA 1809, 1811). Contrary to the petitioner’s contention, the Surrogate’s Court did not err in declining to consider, in the instant proceeding, the petitioner’s allegation that the claimant, who had been appointed the decedent’s guardian pursuant to Mental Hygiene Law article 81 prior to the decedent’s death, had failed to file certain required reports and accountings, and otherwise breached her fiduciary duty as the decedent’s guardian (see Mental Hygiene Law § 81.44[g]; see also SCPA 2103).

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A Probate Lawyer said that sources revealed that this case deals with a slip and fall accident. Defense Attorneys have now moved this court to dismiss the within action with prejudice on the basis that their client has been deceased fro sometime and as such has no standing to be a party to litigation, could not have been properly served, and did not own the said premises on the date of the injury. In addition, the defense asserts that even if a proper defendant could now be found and interposed, said action would be time barred inasmuch as the applicable three year statute of limitations has expired. The complainant asserts that defense “motion should be denied due to the fact that their client is still listed as the owner of record and there is nothing in the record which would have put complainant on notice of the fact the the owner had died or that title had changed.” The complainant has also submitted a cross motion for leave, in the interest of justice, to amend her complaint to add the representatives of the owner’s estate as a party defendant. The complainant notes that although this action was commenced by the filing of a summons and complaint, to which the defense served an answer and a demand for a bill of particulars and for the complainant’s deposition, it wasn’t until after the expiration of the applicable statute of limitations that defense counsel sent her a copy of the owner’s death certificate. Complainant further argues that her cross motion should be granted in the interest of justice inasmuch as the defense cannot claim surprise or prejudice thereby.

A New York Estate Lawyer said the Court of Appeals, in The Matter of Stern, expressly found that “The New York State Constitution confers jurisdiction on the Surrogate’s Court over all actions and proceedings relating to the affairs of decedents, probate of wills, estate administration and actions and proceedings arising thereunder or pertaining thereto, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law. The codification of the Surrogate’s Court Procedure Act in 1966 was intended to implement the powers of that court `to permit all matters relating to affairs of decedents to be determined in the court settling the estate’. The Surrogate’s Court Procedure Act specifies that the Surrogate’s Court’s general jurisdiction encompasses `all the jurisdiction conferred upon it by the constitution and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special statute or provision of law, including this act.

According to EPTL section 11-3.2(a)(1), “No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent.” “Subdivision (a) of CPLR 1015 provides that “If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties” and the action could therefore be continued against the personal representative of the decedent. The Appellate Division added, however, that “where the personal representative is not yet a party to the action, service of the notice of motion of substitution must be made in the manner prescribed for service of a summons under article three of the CPLR. “The procedure for revival of an action by substitution of the personal representative, far from being a mere technical formality, is rather, the recognized means by which a court obtains jurisdiction over the personal representative”, and it is therefore “necessary that the representative be served with process and accorded ‘all the procedural safeguards required by due process of law’ before the court may enter a binding judgment against him. Thus, service of the papers in the manner prescribed for motion papers generally will not suffice.”

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A Probate Lawyer said that records reflect that the Testatrix’ will give the sum of $2,000 in trust for the benefit of the beneficiary who was entitled to the corpus and accumulated income thereof when he became 21 years of age. The will was admitted to probate in 1945 and the executrix thereunder qualified. It is undisputed that the estate was sufficient to pay all trusts and other bequests in full. After letters testamentary were issued, testator qualified as trustee for the benefit of the said beneficiary. By his objection to the trustee’s account, the beneficiary asks that the trustee’s estate be surcharged for the amount of the fund and income thereon. The testator asserted ‘Not a single dollar of these trusts funds was ever received by me’. Testator in an affidavit, filed in this Court before his death, offered no explanation for his failure to take the fund into his possession and did not attempt to justify his failure. Relying on Farmer’s Loan & Trust Co. v. Pendleton, defense assert (1) it was beneficiary’s burden to establish affirmatively that the deceased trustee was negligent in not reducing the fund to his possession, and (2) his representatives upon an accounting are chargeable only for the amount found to be in their hands.

A New York Estate Lawyer said the court ruled that there are significant distinctions between the cited case and the instant matter. The Court of Appeals pointed out: ‘The character of this action should be kept in mind. It is purely an action for an accounting, and nothing else. Therefore the plaintiff was entitled only to the relief appropriate to such an action. It was not an action for breach of trust.’ In that case there were two trustees and it appeared that a portion of the fund in question was in the hands of the co-trustee for which the testator would not be liable unless the fund subsequently came into his hands. Further distinctions could be pointed out but these are enough. In the instant matter the basis of the claim of the beneficiary is the admitted failure of the testator to take into his possession the fund concededly available. In support of their position, testator quote this from the cited decision, supplying emphasis: ‘The contestants were required to show by competent proof the amount of the estate in the hands of the decedent as executor or trustee thereof, and his representative upon an accounting was chargeable only for the amount thus found to have been in his hands.’ That paragraph continues this way: ‘The defendant being unable to state the account the account so far as it related to any portion of the trust fund that came into the hands of her testator, if any, the plaintiff, before it was entitled to a final judgment for any sum, was required to show not only that a portion of the fund came into the hands of the defendant’s testator, but also to show the amount; and the court could properly charge the defendant only with that amount, as in no case will a trustee be held for more than he receives, if he is in no fault and has committed no breach of the trust.’

Queens Probate Lawyers said that in Bank of New York v. N. J. Title Guarantee & Trust Co., the court approved the proposition that a trustee is liable to the beneficiary if he neglects to take proper steps to redress a breach of trust committed by a predecessor fiduciary, and observed that this was too clear to require detailed argument. In Matter of Kistler’s Will, it was held that, in view of the assumption of the trust duty imposed by the terms of the will, the trustee’s failure to reduce the fund to possession presented a potential basis of liability in equal measure as if the trustee had performed affirmative improper acts, noting ‘Nonfeasance is as potent a ground for surcharge as misfeasance.’

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No one really wants to think about what is going to happen when they die. However, it is necessary to plan for this. There are several documents that should be part of your estate plan. The first is the will. This document provides information about what you wish to happen to your estate upon your death. An estate attorney can help you prepare a will that will meet the necessary requirements of the law.

Another document that should be part of your estate plan is an Advanced Health Care Directive (AHCD). The AHCD is a document that is written to express your wishes in regard to your health care needs should you become terminally ill, brain dead, or permanently unconscious. This document may also be referred to by an estate lawyer as a living will.

No matter how wealthy you are or what type of assets that you have in your estate; every person should have a living will. Here are several reasons why you should have a living will and discuss the document with your estate attorney.

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This is an appeal case being heard in the Second Department Appellate Division of the Supreme Court. The plaintiffs in the case are James P. Johnson III, et al. The defendant in the case is Murray Berger. The case also has Neil R. Gerst et al., as third party defendants, plaintiffs-appellants. Kenneth Murphy et al., are the third party defendants and respondents. The defendants, third-party plaintiffs-appellants are represented by Chesney, Murphy & Moran, Westbury. The third party defendant-respondent Kenneth Murphy is represented by Gabor & Gabor with Hope Senzer Gabor for counsel. The third party defendants-respondents Gary Darche is represented by both Koopersmith, Feigenbaum & Potruch and DiMascio, Meisner & Koopersmith.


The defendant’s third party plaintiffs are seeking an appeal from an order made by the Queens County Supreme Court involving a case of legal malpractice. A New York Probate Lawyer said the original order granted the motions for summary judgment for the dismissal of the case in favor of the third party defendants. The order dismissed all of the third party complaints that were asserted against each of them.

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Issues of estate probate can be difficult to figure out. The wishes that a decedent places into their will should be considered as indelible in most cases. However, sometimes a will contains requirements that are not only difficult, but unreasonable for the decedent to place on their progeny. In one case that was heard in New York, Kings County Probate on December 23, 2008, conditions of this type were discussed.

In the incident case, the decedent left several pieces of property to different relatives. However, she placed numerous prerequisites on the acceptance of the property. She required that her family home be left to her niece and must not be sold. She stated that in that residence, the family was required to provide a room for an indigent friend of hers for free for the remainder of his life. She also left a property that was her family business to three members of her family. Two of these family members were people who lived in other countries.

A New York Probate Lawyer said the decedent’s niece filed a motion in probate that the requirements of the will were in violation of the rule against perpetuities. The rule against perpetuities was established to support the public policy of free transfer of property without restrictions on the living by the dead. It prevents an owner of property from putting limits on the power of future owners of the property. The rule against the restraint on alienation of property prevents an owner from creating requirements in their wills that block the recipient from selling or giving away the property as they see fit. In order to determine if the requirement of the will is reasonable, it must have limitations set forth in the document in reference to its duration, price and purpose.

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President Barack Obama has responded to calls from legislators to create a plan to reduce the deficit by proposing to limit the growth of Medicaid and Medicare while raising taxes on richest sector of the American populace.

Obama says his plan would reduce the deficit by $4 trillion over the next 12 years. For every $3 federal spending is cut, $1 would be raised in new taxes. In Nassau and Suffolk Counties, seniors are watching carefully to see what happens.

“We have to live within our means, we have to reduce our deficit, and we have to get back on a path that will allow us to pay down our debt,” the president said in a speech at George Washington University. “And we have to do it in a way that protects the recovery, and protects the investments we need to grow, creates jobs and win the future.”

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