Disinheriting a Spouse: Rules and Limitations in New York State

 

An engraving created in 1894 by the artist Walter Dendy Salder called “The New Will: Everything to My Wife Absolutely!” vividly portrays an older man of wealth who has married a younger woman visiting an attorney to prepare their estate planning documents. The engraving stands for the assumption that a spouse would want to leave the other their entire estate. In reality, this is often not the case. There may be many reasons why one spouse may decide not to leave their entire estate to the other. Perhaps one spouse is on a second or third marriage and would like to leave a portion of their assets to

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A Recent Primer on Undue Influence: Estate of Julia Elizabeth Taschereau

By: Gary E. Bashian, Esq.*

 

On October 29, 2010 Surrogate Webber, of the N.Y. County Surrogate’s Court, rendered a decision regarding the Will of Julia Elizabeth Taschereau (NYLJ 1202474902148 at *1) which offers a detailed illustration of how to meet the evidentiary burden of proving Undue Influence in a Will contest.

Objecting to a Will on the grounds of Undue Influence presents evidentiary challenges. The close relationships that often surround an allegation of Undue Influence make it difficult to prove by direct evidence. The burden is on the Objectant to prove motive, opportunity, and the actual exercise of Undue Influence.

Draft your Will with an Attorney

Many people go through life without much thought to how their property will be divided upon their death. People are typically either too busy to deal with the subject or they do not want to deal with it for emotional reasons. However, there are at least two reasons why you should not put off having an experienced estate lawyer complete your Estate Planning, which should include a Will describing how you would like your property divided upon your death.

First, if you do not have a Will, the state will write one for you, applying a process known as intestacy. This process, wherein your survivors divide your assets, can be excruciatingly complicated and expensive.

Second, if you wait until the last minute, such as if you are in the hospital and you think that a handwritten Will completed in the hospital will suffice, a recent case from Long Island proves otherwise. In this case, the deceased had two nurse witnesses to his handwritten Will while he was in the hospital; following his death, however, his surviving sons objected to this Will and the Judge ultimately held that the Will failed to meet the statutory requirements for due execution of the Will. Had the Will been supervised by an attorney, it may have passed muster.

The results of this case offer an abject lesson on why you should not procrastinate the drafting of your Will, and why it is so important to make sure your Will is done by an attorney who concentrates his or her practice in Wills, Trusts and Estates to assure that proper New York Statutory procedure is followed.

 

Legislative Update

The New York State legislature has voted to amend New York Law and change the rules governing payment of interest on a delayed distribution of a cash legacy from an Estate.

Under the prior law, interest was only payable on a cash legacy that was not paid within seven months of the appointment of a fiduciary, and only if a demand was made upon the fiduciary prior to commencing a proceeding in the Surrogate’s Court to compel payment of that distribution. The prior statute fixed interest at 6% starting seven months from the time that Letters Testamentary, including Preliminary Letters Testamentary, are granted and permits the Court to award interest at the legal or judgment rate of 9% as set forth in the CPLR, if the delay in paying legacies was unreasonable.

Under the new law: 1) The interest rate will be pegged to the “Federal Funds” rate so as to ensure that the statutory rate is neither too high nor too low; 2) Unless otherwise provided for in the terms of the Will or Trust, such outright cash legacies are to be paid no less than seven months from the time Letters Testamentary (including Preliminary or Temporary Letters) are issued, with interest attaching automatically thereafter; and 3) Any actual interest paid will be deductible by the Estate, and considered income for the beneficiary.

Given this new change, when undertaking your Estate planning please consider if you would like to address this issue of interest regarding such cash bequest. Alternatively, if you are appointed as a fiduciary, be advised that the legislature has changed the law, and now requires that interest be paid on a delayed cash legacy.

 

Estate Litigation Tidbits Summer 2003

By: Gary E. Bashian & James G. Yastion

 

IN A CONSTRUCTION PROCEEDING, THE

COURT WILL GO ONLY SO FAR IN

INFERRING THE CREATION OF A TRUST

 

The petitioner in this proceeding sought a construction of the decedent’s Will as creating a trust for her benefit.  Estate of Louis Arancia, NYLJ, April 9, 2003, p. 24 (Surr. Ct. Kings Co.).  Her petition was denied.

 

The petitioner was the executrix of the decedent’s Will and his surviving spouse.  She claimed that paragraph THIRD of the Will created a trust for her benefit.  She cited paragraph THIRD which gave the decedent’s securities to the petitioner for her life and the remainder to their daughter, and further provided that the assets would be held “in trust during [the petitioner’s] lifetime.”