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Holding Power Of Attorney Doesn’t Prohibit All Gifts From Principal To Agent

July 8, 2014

Authors

Luke Lantta

Holding Power Of Attorney Doesn’t Prohibit All Gifts From Principal To Agent

July 8, 2014

by: Luke Lantta

We’ve previously noted that, as the population ages, power of attorney litigation has become a ‘hot’ area of fiduciary litigation.  Transfers of property from a principal to her agent get looked at closely and often – and sometimes justifiably – with suspicion.  And, if the holder of a power of attorney transfers property to herself using the power of attorney, if anyone catches it, then litigation is all but assured.  But, this doesn’t mean that a principal is forever barred from ever giving money or property to her agent.  The principal’s agent is, for example, often the principal’s child.  Certainly, absent incapacity, undue influence, fraud or other similar issues, a parent should be able to freely give property

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1/3 + 1/3 = 3/3: Extrinsic Evidence and Ambiguity in a Will

June 19, 2014

Authors

dkasakove

1/3 + 1/3 = 3/3: Extrinsic Evidence and Ambiguity in a Will

June 19, 2014

by: dkasakove

If you are a lawyer, the following case provides a strict warning against being afflicted with “scrivener’s error” – an inadvertent drafting error that results in a failure of a will or an agreement to accurately reflect the intent of the parties.  In Will of Isasi-Diaz, the New York Surrogates’ Court discussed whether a court may resort to extrinsic evidence to correct a scrivener’s error.  The Court’s answer is: NO!

The executor of the will in Isasi-Diaz petitioned for a reformation of an article of the will on the grounds that the will was incomplete.  Specifically, the executor argued that the testator contemplated the division of her estate into three parts but disposed of only two, devising one-third of her assets to her sister and one-third to her nieces and nephews.  The will was silent on how the final third of the estate should

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If You Think You Can Represent Yourself as an Executor, Think Again!

June 12, 2014

Authors

dkasakove

If You Think You Can Represent Yourself as an Executor, Think Again!

June 12, 2014

by: dkasakove

In a recent case before the New York Surrogate’s Court, an executor, the only beneficiary under a will, tried to represent the estate pro se.  Big mistake!  The Court, in Matter of Van Patten, held that the executor was improperly practicing law without a license.

The background is as follows: Decedent Philip Van Patten was an income beneficiary of a trust under the will of Charles A. Van Patten.  Carole Van Patten was the executor of the estate of Philip.  After the trustee filed an accounting for the trust under Charles’ will, Carol, as executor of Philip’s estate, filed pro se objections to the trustee’s accounting.  The trustee moved to dismiss the objections asserting that the executor lacked legal capacity to sue, arguing that Carol could not represent the interests of the estate pro se.

The court agreed and noted that while

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Who Will Administer Palma Bonora’s Eight Million Dollar Estate?

May 7, 2014

Authors

cchen

Who Will Administer Palma Bonora’s Eight Million Dollar Estate?

May 7, 2014

by: cchen

Warring Public Administrators Face Off in New York’s Appellate Court

Public administrators from two New York counties, Kings and Richmond, have been engaged in a dispute over which will administer the eight million dollar estate of decedent Palma Bonora, who died intestate.

Bonora was a lifelong Brooklyn (Kings County) resident who, for the last four years of her life, lived in a Staten Island (Richmond County) nursing home.  Prior to her relocation to Staten Island, Bonora’s guardian had Bonora’s Brooklyn home demolished and the land later sold.  It is undisputed that Bonora lacked the mental capacity to change her domicile from Kings County to Richmond County and that she was moved by her guardian to Staten Island so that she could obtain the necessary medical care.

Under New York law, the venue of estate administration lies in the county in

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Trust Citizenship

January 9, 2014

Authors

Brenda Gonzalez

Trust Citizenship

January 9, 2014

by: Brenda Gonzalez

In determining whether parties are diverse for subject matter jurisdiction, how is the citizenship of a trust established? It all depends on the type of trust. Courts have held that citizenship of a business or statutory trust is derived from the citizenship of all of the entity’s members. But what about a traditional trust—a testamentary or inter vivos trust created for the benefit of its beneficiaries?

The Southern District of New York recently held that where a traditional trust was the sole membership interest in a limited liability company—the court is to consider only the citizenship of the trustee, and not the citizenship of the trust’s beneficiaries—in determining whether the parties are diverse for subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

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No New York Inter Vivos Pet Trusts: but can you use a traditional trust to circumvent breed-specific laws?

July 17, 2013

Authors

Luke Lantta

No New York Inter Vivos Pet Trusts: but can you use a traditional trust to circumvent breed-specific laws?

July 17, 2013

by: Luke Lantta

Nearly every state now provides for companion animal trusts, also known as pet trusts.  We think of pet trusts as being used to care for an animal that outlives its owner.   A recent case from the federal court in Connecticut, Mittasch v. Reviczky, however, raises the question of whether an inter vivos pet trust can be used as a way to circumvent breed-specific laws or evade so-called ‘disposal orders’ calling for the animal’s euthanization.  And the case addresses the more basic question of whether inter vivos pet trusts are even valid trusts, at least under New York law.

A ‘disposal order’ was issued for Stella Blue, a Rottweiler that “nipped” a police officer during a confrontation at the dog owner’s home.  Eight months after Stella Blue was seized, the owner created an animal trust under New York law, the property of which

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The Inheritance Rights Of ‘Rejected’ Adopted Children

February 20, 2013

Authors

Luke Lantta

The Inheritance Rights Of ‘Rejected’ Adopted Children

February 20, 2013

by: Luke Lantta

When it comes to so-called ‘rejected’ adopted children, many of us are most familiar with the outrage in 2010 when a Tennessee woman sent her adopted son back to Russia on a one-way flight after claiming the 7-year-old had bouts of violence.  But what about the inheritance rights of these adopted children?  Do they have any?

We previously looked at the inheritance rights of biological children adopted out of a family.  Today we’ll turn to the inheritance rights of adopted children who are adopted out of a family in the Matter of Svenningsen, a case of first impression in New York.

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