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Objections to Probate: Undue Influence and Duress

Undue influence occurs when a wrongdoer exerts influence over a testator sufficient to overcome the testator's free will and cause the testator to make a bequest that would not otherwise have been made. Matter of Walther , 6 N.Y.2d 49, 188 N.Y.S.2d 168, 159 N.E.2d 665 (1959) [ enhanced version...

New York Court of Appeals Revisits the Law of Gifting of Art or Other Objects

How does one gift an 1,100 pound sculpture? The New York Court of Appeals recently revisited the law of gifts in the context of determining the validity of such a gift by the deceased sculptor's widow. Mirvish v. Mott , 18 N.Y.3d 510, 2012 N.Y. LEXIS 266 (2012) [ enhanced version available to lexis...

The Slayer Rule and Indirect Benefits from the Wrong

A slayer, a person who without legal excuse is responsible for the intentional killing of another, is denied any right to benefit from that wrong under our laws. While this rule is statutorily codified in many states, in New York it is a rule of common law rather than statutory law. Riggs v. Palmer...

Amendment of Trust by Grantor’s Attorney-in-Fact

An irrevocable and unamendable trust can be revoked or amended during the life of the grantor under certain limited circumstances. New York's Estate Powers and Trust Law (EPTL) provides in Section 7-1.9 that upon the written acknowledged consents of all persons beneficially interested in a trust...

Standing to Object to Revocable Trust Transactions during Settlor’s Life

Often the settlor of a lifetime revocable trust is the only person who has an interest in the income and principal of the trust during his or her lifetime. Sometimes the settlor of such a trust is the sole trustee or serves with another. In other circumstances, there are trustees other than the settlor...

Pre Nuptial Waivers Not Enforceable Unless Properly Acknowledged

By Peter K. Kelly, Esq. Of Counsel, Ruskin Moscou Faltischek P.C. A nuptial agreement which waives certain rights under equitable distribution must be in writing, subscribed by the parties and acknowledged in the manner entitle for a deed to be recorded. Domestic Relations Law Section 236B(3)....

Opening the Safe Deposit Box

By Peter K. Kelly Of Counsel, Ruskin Moscou Faltischek Often shortly after a decedent’s death, family members need to search the decedent’s safe deposit box for the original Will, a deed to a burial plot, a policy of life insurance or papers bearing upon his or her desire as to the...

The Cats Win, The Dogs Lose: Court Upholds the Validity of Pet Trust For Cats

By Peter K. Kelly | Leonore Abels in her Will provided that her residuary pass in trust for her husband Joel Abels and, in the alternative should he predecease her, all of her property be sold, except her house, and held by the trustee to maintain her home, to pay a salary and bonus to her housekeeper...