Category Archives: Trusts & Estates

Numerous Defects in Execution of Propounded Will:

This was originally published on the SGR Blog.

Would Court Grant Unopposed Petition to Probate?

Many of us have either signed or witnessed the signing of a will—and are familiar with some of the concomitant practices and procedures.  But the Estates Powers and Trust Law details the four requirements for the due execution and attestation of a will. What is a Surrogate to do if no one objects to the probate of a will even if that statutorily essential quartet is not meticulously satisfied?

In an uncontested proceeding for the probate of an instrument alleged to have been signed by Domenica L. Russo, the Court held a hearing to determine whether the execution of the proffered instrument met the formal requirements of EPTL 3-2.1.

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Prenup in Foreign Language Signed Abroad in Conformity with Local Law

This was originally posted on the SGR Blog.

Was Agreement Enforceable in New York If Not Executed Accordance with DRL?

A prenuptial agreement is often at the center of New York divorce litigation. But, as a recent case illustrates, the enforcement of a “prenup” becomes a complicated matter for adjudication by the Court where the agreement, in a foreign language, is duly signed abroad—but the execution does not comport with New York law.

Ali Oleiwi and Noor Salah Shiahi were married in Iraq and signed a mahr, a marriage deed, which mandated certain payments from the husband to his wife at the time of marriage and after that, if a divorce occurred. The mahr was executed, based on the evidence before the Court, under the marriage laws of Iraq. But after the husband commenced a divorce action in New York, the parties filed competing declaratory judgment actions. The wife sought to enforce the mahr. And the husband argued that it was not acknowledged in accordance with New York law and was unenforceable.

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Navigating the “Bermuda Triangle” of Objections to Probate:

This was originally posted on the SGR Blog.

Court Considers the Trifecta of Standard Challenges

Objections “101″ to the probate of a will would introduce the three most common grounds: lack of due execution (the will was not properly signed); lack of testamentary capacity (the decedent did not know what s/he was doing); and undue influence (a trust or confidence was exploited), But, as a recent case illustrates, objections are easier said than done.

In a contested probate proceeding, Joy M. Hood moved for an order: granting summary judgment dismissing the objections of Joseph W. Peckelis and admitting the will of Albert J. Peckelis to probate. Joseph opposed the motion.

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“Family Feud” Is Not Just a Primetime Realty TV Show: Conflicting Claims to Unit Ownership End Up in Court

This post was originally published on the SGR Blog.

By agreement, circumstance or inheritance, residential cooperative or condominium units often end up being owned by several family owners. A “happy family” can only be found on the menu of a Chinese restaurant. So, as two recent cases demonstrate, the family members sometimes end up in a so-called “partition” proceeding in which the Court must decide if the unit should be sold and the parties account for their claims to the proceeds of the sale.

Vernon A. Anthony and his brother, Robert S. Anthony, own condominium Unit 1 at 46 President Street in Brooklyn, as tenants in common. Needless to say, litigation ensued.

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Navigating Legal GYMnastics

Nutritionists, physicians our spouses and significant others encourage us to exercise; however, as the cases below suggest, be careful when you go to the gym.

Gebbia v. Town Sports Intl., LLC., 2017 NY Slip Op 32117(U) (Sup. Ct. N.Y. Co. October 6, 2017)

Defendants moved for summary judgment in an action where plaintiff sued for personal injuries he sustained while he was exercising at a gym operated by Town Sports when the cable failed on a seated long-pull rowing machine, manufactured by Precor.

The Court summarized the applicable law:

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Recent Applications of the Ancient Doctrine of “Constructive Trust” to Contemporary Legal Disputes

By Victor M. Metsch, Esq.

This article was originally published by Thomson Reuters.

The Legal Framework

“Constructive trust” was just one of many mind-numbing “ancient” remedies dissected in my first year of law school.  The applicability of such relief, at the time, seemed purely academic and clearly remote from the real world.  Given that introduction to the remedy, I am surprised how often the doctrine is invoked in connection with circumstances that our predecessors-in-law could never have foreseen. Continue reading

Bar review deja vu: Duress and undue influence

By Victor M. Metsch

I had trouble enough staying awake in the over-heated ballroom at the Roosevelt Hotel (in 1969) where I took the New York bar review course – and I am sure that I was fast asleep when the lecturer droned on about the procedures and formalities of will execution.  Be that as it may, buried deep within some synapse is the word “duress” and the phrase “undue influence.”

My recollection of cases relating to the signing of wills conjures up anecdotes from the past, rather than real time disputes.  Under those circumstances, I was surprised to see that two consecutive editions of the New York Law Journal featured, as cases of interest, litigation relating to the validity of a last will and testament.

When a testator favor one family member over another, or favors a stranger over the next of kin, the challenges to a purported will by disappointed relatives would most likely include allegations of duress and undue influence.  Often, the favored family member or stranger is a caregiver with a close relationship to the testator and, as testator’s physical and mental capacity begins to deteriorate, the caregiver is in position to exert improper influence on the testator.

While favoring a caregiver may simply reflect the testator’s gratitude, on occasion, the courts find that an instrument  was not the product of the testator’s free volition.  The Court’s inquiry into the allegation of duress and undue influence invariably is factual.  However, the stories of the recent cases not only delve into factual details but also demonstrate that when a testator consciously makes a choice to favor someone at the expenses of next of kin, steps can be made to ensure that the testator’s wishes are respected and the will withstands attack.

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