In any wrongful death action, a successful outcome for your client will doubtlessly be hard won. However, whether recovery comes from an “action or by settlement without an action,”[i] counsel’s job is far from over once an award is procured in the Supreme Court as the final phase of wrongful death litigation involves Petitioning the Surrogate’s Court to direct the final distribution of the recovery from the Decedent’s Estate to the proper parties.
Westchester County Bar Journal Estate Litigation Tidbits, Fall/Winter 2012
By: Gary E. Bashian, Esq. & Andrew Frisenda
The Bond That Never Was – And We Don’t Mean James
Greene v Greene involved a conversion action, in the Appellate Division Second Department, regarding government bonds allegedly gifted by Decedent to Plaintiff prior to death. Decedent had delivered to Plaintiff an envelope with instructions that it was not to be opened until after his death. Upon death, Plaintiff opened the envelope, and found a form and letter, witnessed by Defendant, regarding a change of ownership of the bonds from the Decedent and Defendant to Plaintiff and his daughter. Defendant’s refusal to turn the bonds over to Plaintiff inspired the action for conversion, which came before the Court on concurrent Motions for Summary Judgment.
As one would expect, the Court considered the elements of an inter vivos gift: intent to make an irrevocable, present transfer of ownership; acceptance; and delivery. Given these elements, the content of the letter enclosed with the change of ownership form only evidenced a future intent to transfer the property, and not a present transfer, Plaintiff could not establish that a gift had in fact been made. Furthermore, a testamentary disposition of the bonds could not be established as the instructions/letter included with the bond did not comply with the execution formalities required by EPTL 3-2.1.
As such, Plaintiff’s action for conversion was properly dismissed by the lower Court, and sustained by the Appellate Division.( Greene v Greene, 92 AD3d 838 [App Div 2nd Dept 2012]).