Estate Administration

Published on: June 7, 2023

Medical malpractice and wrongful death compromise. Delrossi v. Defendant V, 2004 N.Y. Slip Op. 24462 (N.Y. Sup. Ct. 2005)

by Stephen Bilkis

Delrossi v. Defendant V, 2004 N.Y. Slip Op. 24462 (N.Y. Sup. Ct. 2005) is a complicated case that spans over two decades. The intricacies of this legal battle, involving issues of wrongful death, survivorship claims, and reimbursement rights, present a fascinating study in the interplay between state and federal laws. The case begins as a wrongful death case based on malpractice. Ultimately, there is a fight over who is entitled to the money from the wrongful death claim.

When someone dies due to the negligence of another person, a wrongful death claim can be filed against the negligent parties to recover damages. Through a wrongful death compromise proceeding, the court determines if the damages are for wrongful death or for personal injury.

Background Facts

Published on: May 1, 2023

In a wrongful death compromise case, the court determined that regardless of their mental health issues, a person cannot profit from their wrongdoing. In re Demesyeux, 978 N.Y.S.2d 608 (N.Y. Surr. Ct. 2013)

by Stephen Bilkis

In re Demesyeux, 978 N.Y.S.2d 608 (N.Y. Surr. Ct. 2013) the Surrogate’s Court considered an issue related to the wrongful deaths of 3 children and who was entitled to receive benefit from the proceeds of a wrongful death lawsuit. The case was tragic, as it involved a mother who suffered from mental illness, killing her three young children. While typically the parents would be a minor child’s next of kin, entitled them to share in any wrongful death compensation awarded, this case was unique because one of the parents caused the wrongful death of the children.

Background Facts

Leatrice Brewer confessed to drowning her three children aged 1, 5, and 6, in the bathtub of her New Cassel apartment on Long Island in February 2008. After drowning them, Brewer placed the lifeless bodies of her children on a bed and attempted to end her own life by swallowing a toxic concoction of household cleaning chemicals. When this attempt failed to claim her life, Brewer resorted to jumping out of her second-story window. She survived.

Published on: April 26, 2023

Court considered who was the legal owner of financial accounts. Kagan v. Ameriprise Fin. Servs., Inc., 62 Misc. 3d 1203 (N.Y. Sup. Ct. 2018)

by Stephen Bilkis

A beneficiary designation is a legal arrangement that allows an individual to specify who will receive their assets, such as life insurance proceeds, retirement account funds, or other payable-on-death accounts, upon their death. It is a critical aspect of estate planning, providing a clear directive for the distribution of specific assets outside the probate process.

The mental capacity to change beneficiary designations is significant because it ensures that individuals making such decisions are of sound mind and capable of understanding the implications of their choices. Mental capacity, in this context, refers to an individual’s ability to comprehend the nature and extent of their property, understand who might have a claim to their assets, and appreciate the consequences of designating or changing beneficiaries.

In the absence of proper mental capacity, challenges may arise regarding the validity of beneficiary changes. If someone is deemed mentally incapable at the time of altering a designation, it could lead to disputes, particularly if other interested parties argue that the changes were made under duress, coercion, or when the individual lacked the capacity to make informed decisions. Ensuring mental capacity during the modification of beneficiary designations helps maintain the integrity of the estate planning process and reduces the likelihood of legal contests surrounding these decisions.

Published on: January 2, 2023

Medical evidence not sufficient to show lack of capacity. Matter of Estate of Paul Tucker, 2020 NY Slip Op 31604(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Lack of capacity to make a will in New York refers to a situation where the testator (the person making the will) does not have the mental capacity to understand the nature and consequences of his or her actions when executing the will. In order to have the capacity to make a will in New York, the testator must have a general understanding of the nature and extent of his or her property, the natural objects of his or her bounty, and the effect of executing the will. Lack of capacity may result from a variety of factors, including mental illness, dementia, or other conditions that affect cognitive functioning.

In a will contest in New York, medical evidence can be used to prove that the testator lacked the capacity to execute the will. This may involve presenting medical records, expert testimony from treating physicians, or other evidence to establish the testator’s mental state at the time the will was executed. However, just like with any evidence, the court will determine whether it is sufficient.

Background

Published on: January 2, 2023

Court determined that allegations of undue influence were speculative and not substantiated. Niola v. Sarno, 939 N.Y.S.2d 553 (N.Y. App. Div. 2012)

by Stephen Bilkis

The contested probate case in Niola v. Sarno, 939 N.Y.S.2d 553 (N.Y. App. Div. 2012) involves Maria Capuano’s will and a dispute centered on allegations of fraud and undue influence. In the context of a will contest in New York, fraud involves the intentional use of deceptive practices to manipulate or mislead the testator in the creation or execution of a will. To substantiate a claim of fraud, an objectant must provide clear and convincing evidence that the proponent of the will knowingly made false statements or engaged in deceitful conduct, with the specific intent to influence the testator’s decisions regarding the distribution of their assets. Fraudulent actions may include misrepresentations about the will’s contents, the testator’s assets, or other relevant information, leading to a disposition of property that differs from the testator’s true intentions. Proving fraud in a will contest requires a high evidentiary standard to ensure the validity and integrity of the testamentary process.

In the context of a will contest in New York, undue influence refers to a situation where an individual exerts improper or coercive pressure on the testator, compelling them to create a will that reflects the influencer’s desires rather than the genuine intentions of the testator. To establish undue influence, an objectant must demonstrate, by clear and convincing evidence, that the influencer engaged in conduct amounting to moral coercion, which significantly constrained the testator’s independent judgment and free will. This may involve tactics such as manipulation, intimidation, or exploitation of a confidential or fiduciary relationship. Courts scrutinize such claims closely, ensuring that the testator’s testamentary freedom remains intact and that the resulting will is a true reflection of the testator’s intentions rather than the product of external pressures.

Background Facts

Published on: December 12, 2022

Spouse of decedent can have limited access to decedent’s Google accounts. In re the Estate of Serrano, 56 Misc. 3d 497 (N.Y. Sur. Ct. 2017)

by Stephen Bilkis

The administration of an estate of a decedent requires a personal representative to identify and gain access to their property. Unlike personal property, real estate, and even financial accounts, electronic accounts of decedents can present special challenges for survivors to access. Typically, a request must be sent the custodian of the electronic records who will request a court order. In the case of In re the Estate of Serrano, the Surrogate’s Court was asked to issue a court order directing Google to allow a decedent’s surviving spouse to access the decedent’s Google accounts.

Background

The petitioner’s spouse died. The petitioner wanted to gain access to the decedent’s Google accounts, including his Google email, contacts, and calendar. The petitioner’s stated purpose was to let the decedents friends know of his passing and to close out any unfinished business. The petitioner requested access to the accounts from Google. Google responded by asking for a court order. The petitioner filed an amended affidavit with the Surrogate’s Court requesting authority to access his deceased spouse’s Google’s accounts.

Published on: December 5, 2022

Children of adopted-out child in an intraframily adoption were entitled an intestate share. In re the Estate of LaBelle, 51 Misc. 3d 658 (N.Y. Sur. Ct. 2016)

by Stephen Bilkis

Under New York law, children of who are adopted-out are not entitled to an intestate share of their biological parents’ estate. However, exceptions to this rule were enacted to the Domestic Relations Law starting in 1987. In 1987, the New York legislature revised the statute by adding a provision to Domestic Relations Law § 117 permitting adopted-out children in intrafamily adoption situations to inherit from their birth family members in certain specified circumstances.

The issue in the case of In re the Estate of LaBelle is whether the current rule allowing adopted-out children in intrafamily adoptions to inherit from their birth family members applies to a child who was adopted out prior to 1987.

Background

Published on: November 23, 2022

Court will grant a petition to access contents of a safe-deposit box only to a distribute, beneficiary, or fiduciary. In re the Estates of Adelewitz, 24 Misc. 3d 374 (N.Y. Sur. Ct. 2009)

by Stephen Bilkis

While people often use safety deposit boxes to hold valuable items such as jewelry, cash, and collections, they also use them to store important papers such as wills and other estate documents. Upon death, it is important to immediately access the contents of safe deposit boxes, particularly if they contain the decedent’s will.

In New York, the only way to access the safe deposit box of a decedent is with a court order. The court will only entertain petitions to open safe deposit boxes if they are from a the nearest surviving distribute, a beneficiary, or the fiduciary. SCPA §2003. In the case of In re the Estates of Adelewitz, the court considered who has the right to petition access to safe deposit boxes that were part of the estates of a husband and wife- Steven and Rita Adelewitz.

Background

Published on: November 21, 2022

Surrogate’s Court determined that Richmond County was the proper venue for a probate proceeding. In re the Estate of Bonora, 44 Misc. 3d 171 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

In New York, the Surrogate’s Court system has jurisdiction over estate matters. There are Surrogate’s Courts in each county in New York. The proper venue for an estate proceeding is determined by where the decedent was domiciled at the time of their death. Domicile refers to the location where a person has their primary home. Determining domicile can be tricky when someone is a long-term patient at a healthcare facility. In the case of In re the Estate of Bonora, the Surrogate’s Court had to determine whether the decedent was a resident of Kings County or Richmond County at the time of her death.

Background

For many years before her death, decedent Palma Bonora resided in Kings County, New York. However, on March 31, 2008, she was admitted to St. Elizabeth Ann’s Health Care and Rehabilitation in Staten Island, Richmond County, New York. She passed away on July 12, 2013 while she was still a patient there. The Public Administrator of Richmond County file for letters of administration and was granted temporary letters on December 13, 2013. The Public Administrator of Kings County moved to intervene and filed objections, alleging that there are common questions of law or fact, including whether the decedent was domiciled in Richmond County or Kings County at the time of her death.

Published on: August 1, 2022

In a turnover proceeding, the Appellate Division upheld the determination that the funds were the property of the estate and not gifts. In re Kelligrew, 63 A.D.3d 1064 (N.Y. App. Div. 2009)

by Stephen Bilkis

During estate administration, a major responsibility of a personal representative is to identify, secure, and inventory estate assets. In some instances, a turnover proceeding is required to ensure that all assets that are part of the estate are accounted for. A turnover proceeding is a legal proceeding that occurs during which the representative of an estate requests that property of the estate in the possession of third parties is returned to the estate. SCPA § 2103.

In Kelligrew, the court considered whether nearly $200,000 in funds transferred to via check drawn on the decedent’s account were assets of the decedent’s estate or a gift.

Background