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New York Estate Planning can take many forms. One aspect of a plan can involve the creation and use of a trust. There are a number of different types of trusts and benefits that may be obtained from their utilization.

For instance, a Testamentary Trust is created by a Last Will and Testament. The provisions of the trust are part of the Will itself. Testamentary trusts can be used to provide for minimizing estate taxes by taking advantage of the exemption provided by the estate tax law. These types of trusts can also be used for other reasons such as establishing a means to administer and manage trust funds for a minor or for a person who may lack the ability to be responsible for large sums of money. Sometimes there may be the need to create a Supplemental Needs Trust. This type of trust allows a fund to be utilized for the benefit of a person who is receiving government assistance such as Medicaid without disqualifying the recipient from future government payments.

An Inter Vivos Trust is a trust that is set up as a separate document during the lifetime of the creator. A common form of an inter vivos trust is a Living Trust or Grantor Trust. This document can provide many different benefits including the avoidance of probate, estate planning and tax minimization, and a mechanism for property management in the event the creator becomes disabled or incapacitated.

Whenever a trust is created it is important that the trustees are carefully selected so that they will carry out the intentions of the creator and protect the interests of the beneficiaries. Unfortunately, there are many instances where there is controversy between the trustees and beneficiaries. In a recent case entitled “Trust of Frederick Brockway Gleason, Jr.” decided by Manhattan Surrogate Nora Anderson on November 12, 2013 and reported in the New York Law Journal on November 25, 2013, a successor income beneficiary of a trust claimed that a trustee breached its fiduciary duties by allowing the trust principal to be invaded for the benefit of the initial income beneficiary who was her father. The court denied the beneficiary’s request for summary judgment which left the matter open for future litigation and a trial on the merits.

In another interesting case, grandchildren of the late Walt Disney are involved in a court battle regarding a trust. As reported by Joshua Gardner in MailOnline on November 25, 2013 it is alleged that trustees of a trust fund held for Walt Disney’s grandson have been wrongfully withholding payments from the grandson. A court date is scheduled for December 5, 2013.

I have represented many individuals regarding the creation and administration of trusts including testamentary trusts, inter vivos trusts and supplemental needs trusts. All of these instruments can be very helpful in expressing the intention and desires of the creator and may provide tax benefits or protection and asset management for persons such as a minor or those with incapacitating conditions.

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New York Guardianship for an incapacitated person is controlled by Article 81 of the Mental Hygiene Law (“MHL”). As discussed in previous posts, this statute contains the procedure for the appointment of a guardian as well as the powers that may be given to a personal needs guardian and a property management guardian.

Many of the guardian’s powers are clear and routine. For example, MHL Section 81.21 (Powers of a guardian; property management) provides that a guardian can marshall assets, pay bills that are reasonably necessary for maintenance of the incapacitated person and invest guardianship funds. The guardian’s powers are typically delineated in the Order or Judgment appointing the guardian and can vary from case to case depending upon the particular situation.

Guardianship cases may involve either old or young incapacitated persons. In many instances, a Guardianship is utilized for the benefit of an infant or younger individual who has suffered an injury that results in incapacity and has recovered a substantial sum of money in a lawsuit stemming from the events causing the injury. These events include automobile accidents or medical malpractice.

It is rather common that when an infant or child is injured and receives a large money award due to incapacitating injuries, the child continues to reside at home with his parents. Issues then arise as to what extent, if any, the guardianship funds may be utilized for the infant notwithstanding that a parent has a duty to support a minor child. Another issue that appears is to what extent can expenditures for the incapacitated child also result in a benefit for the child’s parents and other members of his household.

In a recent case entitled Matter of Sigal, decided by Judge Gary F. Knobel of the Nassau County Court on November 12, 2013 and reported in the New York Law Journal on November 22, 2013, the Court was faced with some of these issues. The co-guardians – parents of their incapacitated daughter sought reimbursement from guardianship funds for the costs of a bat mitzvah party and authorization to expend guardianship money for the cost of a vacation for their entire family and an aide. The Court reviewed the many applicable factors including a consideration of the preservation of guardianship funds, the financial ability of the parents to personally pay for these expenses and whether the costs were for necessities, treatment or for education. Based upon these factors and others the Court denied the request for reimbursement of the bat mitzvah party expenses but allowed some funds for the vacation. The Court was concerned that the guardians recognize that the guardianship funds were not for family use but must be preserved for the incapacitated person’s needs throughout her life.

I have represented many petitioners and parents in venues such as Manhattan Guardianship and Brooklyn Guardianship. The Courts routinely inquire as to the proper use of guardianship funds so that the interests of the incapacitated person is protected to the maximum extent possible. While some of these types of cases require the establishment of a Supplemental Needs Trust, the Courts will still require that the trustees exercise their fiduciary powers in accordance with these principals.

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As discussed in a number of earlier posts in the New York Probate Lawyer Blog, a decedent’s next of kin (“distributees”) need to be determined in Surrogate’s Court proceedings such as probate and intestate administration.

The estate laws allow significant rights to a decedent’s surviving spouse. Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1(a)(1) provides that in the case of intestacy, a spouse is entitled to receive $50,000.00 and one-half of an estate if a decedent is survived by a spouse and issue (i.e. children) and if there are no issue, the surviving spouse inherits the whole estate.

In many situations, estate disputes may arise as to the interests claimed by a spouse. New York Will lawyers are familiar with EPTL 5-1.1-A which is entitled “Right of election by surviving spouse“. Under this statute a spouse who is disinherited by the decedent can claim an amount that is equivalent to the greater of $50,000.00 or one-third of a decedent’s net estate. However, another part of the EPTL, Section 5-1.2, lists various instances where a spouse may be disqualified from receiving a share of an estate. For example, a divorce or a determination that a marriage was void will terminate spousal rights. Another section of this statute, paragraph (a)(5), provides that a spouse will lose his estate rights if he abandoned the spouse that is deceased and the abandonment continued until the spouse’s death. Paragraph (a)(6) also directs disqualification in certain cases where a surviving spouse fails to support the deceased spouse.

There have been numerous estate litigation cases over the years concerning whether a spouse’s inheritance rights have been terminated under these sections of the law. In a recent case decided by Brooklyn Surrogate Margarita Lopez Torres entitled Estate of Joseph E Nichols dated October 4, 2013 and reported in the New York Law Journal on November 15, 2013, Surrogate Lopez Torres upheld the right of the surviving spouse to claim an elective share of the estate. The Court found that the assertions by the decedent’s children that the spouse abandoned the decedent or failed to provide the required support were not valid and could not provide a basis to disqualify the surviving spouse. The Court dismissed the objections to spouse’s right of election.

The settlement of a New York estate often involves complex issues regarding the determination and status of distributees and their rights to receive a share of a decedent’s estate. Sometimes these issues are resolved through a kinship hearing. In other cases, different proceedings such as the determination of the validity of a spousal right of election may be the process for such review. In all Surrogate Court disputes, it is always helpful to obtain advice and guidance from a qualified estates and trusts lawyer.

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The New York Probate Lawyer Blog has discussed in earlier posts that a New York Last Will must comply with statutory requirements. Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides many of the rules regarding the signing and form of a Will.

For example, the statute provides that all Wills must be in writing and signed at the end of the document. Also, paragraph (a)(1)(B) states that anything that is added above a testator’s signature after a Will is executed is not to be given any effect. Paragraph (a)(4) requires that there shall be at least two (2) witnesses to the Will and paragraph (a)(3) sets forth that the testator must declare to the witnesses that the paper being signed is his Will.

While this statute and the many court cases interpreting the legal requirements of a Will and its execution may seem very formalistic, the underlying rationale is to insure that a testator’s last wishes and intentions are reflected in a paper that has a high probability of validity. The strict requirements surrounding the form and signing of Last Wills protect both the interests of the testator and the beneficiaries named in the document.

The legal requirements, however, do not prevent the many estate litigation controversies that frequently occur. Will contests are fairly common. In many of these contested Will cases, even though the document may appear to have been properly executed with sufficient witnesses, an objectant may claim that the testator did not have the capacity to make a valid Will, or that the testator was unduly influenced or coerced into signing the Will. These matters are typically dealt with in probate proceedings in the New York Surrogate’s Courts. Estate attorneys generally represent the parties involved such as the person petitioning for probate who is usually the named executor and the potential or actual Will objectants.

The formality of a written document that is witnessed by at least two people creates certainty for the disposition of assets of a decedent. An interesting case was recently reported by Eric Frazier in the Charlotte Observer on October 22, 2013. In an article entitled “Son of late developer Henry Faison suing his firm over Will“, it was reported that Henry Faison, a Charlotte, North Carolina real estate developer, had died just before he was to sign a new Will. Mr. Faison’s new estate plan would have left most of his multi-million dollar estate to a charitable foundation instead of to his company. The decedent’s two sons commenced a lawsuit to try and enforce the terms of the new Will which was not signed before Mr. Faison’s demise.

Mr. Faison’s situation is not uncommon. However, despite circumstances that may indicate that Mr. Faison was intending to change his estate plan, since there is no actual signed and witnessed paper to rely on, it can only be speculated as to whether the decedent may have had a last minute change of heart as to the disposition of his estate. It will be interesting to see how the Courts decide this case and whether any validity is given to an unsigned document.

Having a duly executed Will, Living Will, Health Care Proxy and Power of Attorney is important to preserve the creator’s intentions and eliminate any guesswork and, ultimately, estate settlement litigation, that might ensue in the absence of such documents.

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The estate planning process as well as estate settlement almost always requires a close relationship between a New York Estate Lawyer and a client. When a client is planning an estate and seeking advice regarding the disposition of assets and the naming of beneficiaries, there must be a personal discourse with the attorney advisor. Depending upon each particular circumstance, a testator’s confidential information regarding such matters as divorces, non-marital children and sensitive business issues can be essential to developing an effective estate plan. Typically, the estate planning attorney will inquire of the client as to all information regarding assets and family life and history so that the provisions of documents such as a Last Will or Trust accurately take into consideration the possible effect of the testator’s family circumstances. For example, if the testator was adopted at an early age and has no information regarding his next of kin, an attorney may suggest the use of a Living Trust as a Will substitute. This trust could avoid the need to search for next of kin and to provide such potential heirs with notice of a Surrogate’s Court probate proceeding which would be required if the testator disposed of his estate through a Last Will.

Estate settlement and administration also requires a good working relationship between the fiduciary and the attorney. An Executor, Administrator and Trustee face many issues dealing with asset collection, payment of debts and claims and various tax matters. In some instances, the interests of the fiduciary and the beneficiaries themselves may be at odds or in conflict. Particularly in family situations, the fiduciary may be knowledgeable about and have relationships with family members that can assist legal counsel in resolving disputes without Court intervention. While legal guidance is essential, it is always best if interested parties can resolve differences amicably. In order for an attorney and fiduciary to achieve such results, they must work closely together.

An interesting aspect of the relationship between an estate attorney and a client relates to the well-recognized attorney-client privilege. When a person dies, the attorney-client privilege between the decedent and his life-time attorney generally continues. Thus, an attorney is prohibited from disclosing communications between the attorney and client even after the client dies. However, in New York Civil Practice Law (CPLR) Section 4503(b), the statute creates an exception which provides that “in any action involving the probate, validity or construction of a will, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but shall not be allowed to disclose any communication privileged under subdivisions (a) which would tend to disgrace the memory of the decedent“. Therefore, confidential communications can be disclosed when there is a Will Contest.

It is also interesting to note that the Courts have ruled that a fiduciary who represents an estate can waive the decedent’s attorney-client privilege for the estate’s benefit. Moreover, as provided of CPLR 4503(a)(2) communications between an attorney and a personal representative, such as an Executor and Administrator, are generally privileged.

New York Estate Planning and Estate Administration typically require close and confidential communication between an attorney and a client. While it may seem obvious, creating and continuing a strong and trusting relationship between legal counsel and a client is more likely to produce a positive outcome whether in the creation of an estate plan or the settlement of an estate.

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The estate of a decedent in New York may contain many different types of assets. The New York Probate Lawyer Blog has discussed in past posts that such assets may include bank accounts, stocks and bonds and real estate. In fact, real estate, in the form of a family residence, is commonly one of, if not the most, valuable asset involved in estate settlement.

An Executor or Administrator who is handling an estate that has a real property asset faces many issues. To begin with, the fiduciary must determine the ownership of the property. Real estate can be held in many different ways such as tenancy by the entirety between spouses, or joint tenancy with rights of survivorship, or tenancy in common among a number of parties. The manner in which a property is owned will determine the extent to which the decedent’s estate has an interest in such property. Moreover, there are a number of overlapping fiduciary responsibilities that flow from the determination of ownership. For example, if the decedent’s house is owned by the decedent and his spouse as tenants by the entirety, upon death the full ownership interest in the house passes to the surviving spouse and no portion would be part of the probate or intestate administration estate. However, the value of the house would need to be included in the decedent’s estate tax return (if a return must be filed). The estate fiduciary has a responsibility to prepare and file the estate tax return and pay any Federal or State estate taxes.

Suppose that the property was owned by the decedent along with others as tenants in common. In such a case, only the decedent’s share of ownership would be part of his probate or intestate estate and includable as part of his gross estate for estate tax purposes.

If, however, the decedent owned property as a joint tenant with rights of survivorship with a person who was not a spouse such as a child, upon the decedent’s death, the entire property interest would pass to the surviving joint owner. However, the entire value of the property would be includable in the decedent’s estate for estate tax purposes unless it can be shown that the survivor contributed monetarily towards the property such as payment of part of the purchase price.

Also, determining whether and to what extent a decedent owns real property may not always be an easy task. Many persons own property for many decades and may have inherited an interest in the property along with others over time. There may be co-owners of the property who predecease the decedent. In the event the estates of these co-owners were not have been administered it may prevent the clear transfer of the decedent’s property interest.

Another challenge facing a fiduciary is the valuation of the real estate. In most cases, a certified appraisal will be needed to provide an accurate and acceptable valuation for estate tax purposes and the potential sale of the property. If approval of the sale of property is needed from the Surrogate’s Court, the Court will require that a proper appraisal is obtained. In many instances of intestate administration, the Surrogate’s Court will appoint estate Administrators but place a restriction on their powers that requires the approval of the Court before the estate real property can be transferred, sold or mortgaged.

I have represented Administrators who have been required to obtain Court approval of their sale of real estate. Based upon my over 30 years of experience helping clients in Surrogate’s Court and real estate closings, I have prepared the necessary contracts and Court papers to obtain approval of the transactions.

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A fiduciary appointed by a Court in New York is given various powers and authority to be used in carrying out the tasks of administration. The most common situation is the appointment of an Executor or Administrator by the Surrogate’s Court. In the case of an Executor, the decedent’s Last Will typically contains provisions that state the powers that the Executor is empowered to utilize such as the sale of the decedent’s real estate. The Will can limit or expand powers and the Executor is generally also afforded the powers that are provided by the statutes and rules such as Estates, Powers and Trusts Law (“EPTL”) Section 11-1.1 entitled “Fiduciaries’ Powers”. Paragraph (a) of the statute lists the various types of fiduciaries for which the statute applies such as executors and administrators. EPTL 11-1.1 then continues to provide the many and various powers that fiduciaries are entitled to exercise such as to invest and reinvest assets, to mortgage property, contest or compromise claims and sign deeds and other documents.

The New York Probate Lawyer Blog has discussed in earlier posts the obligations that a fiduciary has to act properly and not engage in self-dealing or other activities that would constitute a breach of fiduciary duties. The fiduciary can be personally liable to estate or trust beneficiaries or others if he acts in a manner that causes harm or losses to other parties’ interests. In view of the potential liability facing a fiduciary such as an executor, the fiduciary may be hesitant to make a decision regarding a matter that is causing dispute among beneficiaries or for which there is no absolute way to determine the right or wrong act before a decision needs to be made. For example, there may exist a situation where a decedent owned real estate or a business and the fiduciary needs to sell the asset for estate settlement. Although it is necessary to obtain appraisals and competing offers prior to a sale, the estate beneficiaries may nevertheless have conflicting views as to whether the fiduciary obtained the highest price for the asset when it is sold. In such an instance, a beneficiary may file objections to the fiduciary’s accounting and seek to hold him personally liable for an alleged shortfall between the claimed value and the proceeds received from the sale.

Unfortunately for the fiduciary in New York, he will most times be responsible to exercise his business judgment in making these decisions. The Surrogate’s Court routinely refuses to advise an executor or administrator beforehand as to the proper decision he is to make. The Surrogate’s Court Procedure Act (“SCPA”) does, however, contain provisions in SCPA 2107 that allow a fiduciary to obtain prior Court approval before acting at one’s own peril. This statute is entitled “Court may direct as to value, manner and time of sale of property and give advice and direction in extraordinary circumstances”.

The Surrogate’s Courts are not obligated to provide the fiduciary with “advice and direction” in all cases. The Court in its discretion must be convinced that there are sufficient extraordinary circumstances or other appropriate conditions before it will intercede and provide a fiduciary with direction. Most of the time the Court generally refuses to accept these types of cases and advises the fiduciary that it is their responsibility to exercise their business judgment in making administration decisions.

An executor or other fiduciary who accepts the responsibility of acting in such capacity needs to understand that he must proceed in a manner that does not breach his fiduciary duties. Moreover, while acting in good faith, the fiduciary may still be subject to situations where he is potentially liable for decisions made in the course of estate administration and that the Court will not usually provide advance guidance or protection regarding these matters. Thus, it is important that the fiduciary obtain advice from all possible and necessary sources such as a New York estate attorney, financial advisors, accountants, and other professionals relating to the particular situation involved.

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The determination of kinship is important for all New York estate matters. The New York Probate Lawyer Blog has had many posts discussing this issue.

Firstly, an Estate Planning Lawyer typically asks a client to provide information regarding next of kin. This information serves many useful purposes. It can indicate whether a person’s estate might be the subject of a Will Contest or Will Dispute if a testator is leaving a large portion of an estate to individuals who are not close relatives. If this is the case, the estate planning attorney may suggest alternative methods of asset distribution such as lifetime gifts or a living trust. These vehicles would avoid the probate and Surrogate’s Court process which provides next of kin (i.e. “distributees”), with an automatic right to contest a person’s Last Will.

Kinship information is important when a Last Will is to be filed for probate. An Estate Lawyer needs to prepare a Probate Petition that includes all information such as names and address of a decedent’s distributees. These distributees are then provided with a notice issued by the Court called a Citation as to the probate proceedings.

When a person dies without a Will, the estate is subject to intestate administration. The estate beneficiaries are the persons determined under the New York statutes. Estates, Powers and Trusts Law Section (“EPTL”) 4-1.1 provides for the priority of the heirs entitled to inherit.

In many cases, the next of kin of a decedent are unknown or are distant in relation such as cousins. It may be that the county Public Administrator is needed to administer such estates and that a Kinship Hearing is required by the Surrogate’s Court to establish the identity of the persons entitled to the inheritance. As can be seen, it is important to have complete information regarding kinship for effective estate planning and estate administration. Although a person may prepare a Last Will leaving his or her assets to a close friend or other non-heir beneficiary, the probate of the Will may be delayed and unduly costly due to the search for decedent’s heirs who were not identified or considered when the estate plan was created. Of course, when a person does not prepare a Last Will, the likelihood of complications regarding the determination and proof of kinship increases dramatically.

A recent Ohio case, although not directly involving a kinship estate problem, points to the issues faced when a person needs to show familial relationships such as the whereabouts or status of a potential heir. As reported by Ryan Dunn in The Courier.com dated October 8, 2013, a fellow named Eugene Miller was declared legally dead by the Hancock County Probate Court in 1994, which was eight years after he disappeared. Mr. Miller recently reappeared and claimed to have just “took off” due to alcoholism and loss of his job. He then petitioned the Court to reverse its ruling that he was dead. The Court, however, refused to reverse its ruling because the three (3) year limit to change the ruling had passed. Mr. Miller was told by the Court that he was still considered to be legally dead.

While Mr. Miller’s predicament seems somewhat unique, it points to the uncertainties and difficulties that can be presented when attempting to show kinship and proving that an ancestor is deceased or that he was not survived by any living issue. EPTL Section 2-1.7 entitled “Presumption of Death From Absense; effect of exposure to specific peril” provides a procedure to have an absentee declared to be dead. Also, New York Surrogate’s Court Procedure Act 2225 entitled “Determination of distributees, devisees, legatees, beneficiaries and distributive and beneficial shares” provides a procedure to have a possible estate beneficiary declared presumatively deceased.

The estate planning and administration process is quite complex and the need to understand and determine kinship is essential.

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The common view of the process of administering a decedent’s estate typically follows a progression whereby a person’s Last Will is probated, assets are located and collected, bills and taxes are paid, and finally the net estate is distributed to the estate beneficiaries. Generally, this description is applicable to many estates that are filed in the New York Surrogate’s Courts.

However, in numerous instances, the decedent’s family and the estate fiduciary, whether an Executor or Administrator, is faced with circumstances that might necessitate estate litigation or other Court proceedings to rectify wrongful acts that a decedent was subjected to prior to death.

For example, recently in a lawsuit brought by the pop star Michael Jackson’s family, it was alleged that Mr. Jackson’s promoter, AEG Live, was negligent in hiring the doctor that gave Mr. Jackson the drugs that resulted in his death. As discussed in an article by Eriq Gardner in the HollywoodReport.com on October 2, 2013, a jury found that the promoter was not to blame for the pop star’s death.

Another recent Court case in which a decedent’s heirs are seeking to protect rights or correct wrongs regarding a decedent involves the heirs of Frank Petrella who wrote an autobiography and a screenplay about the boxer, Jake LaMotta. Mr.Petrella died in 1981. As reported by Eriq Gardner in the HollywoodReporter.com on October 1, 2013, the United States Supreme Court has agreed to hear arguments regarding the dismissal of the heirs lawsuit which claims rights to the film Raging Bull and seeks damages from
MGM and 20th Century Fox for alleged infringement of copyrights.

Another example of estate litigation intended to rectify a wrong practiced upon a decedent is shown in a decision by Queens Surrogate Peter J. Kelly in Estate of Rita Koch, decided on September 13, 2012 and reported in the New York Law Journal on October 4, 2013. In Koch the petitioner sought to obtain copies of the personal banking records of a person who was the attorney-in-fact for the decedent during the decedent’s life-time. The Court allowed the discovery in view of the evidence that showed that the attorney-in-fact breached her fiduciary duties to the decedent by self-dealing.

As demonstrated by the above examples, administration of a decedent’s estate sometimes may involve more than just settling affairs by collecting assets and paying expenses. New York Estate Lawyers are familiar with the many instances in which lifetime occurrences affecting the decedent may need to be rectified by post-death estate Court proceedings. These post-death proceedings can include wrongful death or negligence actions, discovery proceedings against third parties who converted or wrongfully obtained assets from the decedent prior to death or the enforcement of agreements or contracts that the decedent entered into and were not adhered to by third parties. In these cases and others Executors, Administrators and family members need to be vigilant to protect the rights and assets that a decedent is entitled to.

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New York estate planning lawyers are aware of the need to prepare estate planning documents with clear and unambiguous language. There are many types of papers that require clarity of language. These include Last Wills, Living Trusts, Living Wills and Health Care Proxies.

The use of specific provisions contained in documents such as a Last Will and Living Trust is most critical since these papers reflect a person’s directions and intent regarding the disposition of assets. There may be various provisions in a Will or Trust that may provide for a gift of a certain sum of money to a named individual. There may also be more complex provisions that provide for disposition in a trust with various conditions or alternatives in the event individuals become deceased. Dispositions, especially to a surviving spouse may have certain tax consequences and there may be specific Will clauses that allocate the burden of paying estate taxes against particular bequests.

The use of definitive and non-confusing language serves to provide maximum effect to a testator’s or creator’s intent and prevents post-death confusion and disputes regarding the meaning of the language contained in the document.

The New York Surrogate’s Courts have been the forum of many cases where the wording in a Will or Trust has been the subject of Estate Litigation. Two recent cases provide examples of such estate disputes and the manner in which a Court might view such issues. In general, where language in a document is unclear, a “construction proceeding” is needed to resolve the issue. Recently, Manhattan Surrogate Nora Anderson was presented with a petition for a Will construction in Will of Edwin C. Scheurer. In a decision dated September 16, 2013 and reported in the New York Law Journal on September 23, 2013, Surrogate Anderson found that there was no ambiguity in the Will provisions that eliminated a bequest to one of the decedent’s grandchildren. Since the Will language was not ambiguous, the Court refused to allow any extrinsic or outside evidence to be used to interpret the testator’s intent.

A different result was reached, however, in In Re Estate of Phillips, 957 N.Y.S. 2d 778 (4th Dept. 2012), where the Appellate Division determined that the language in the Will was unclear and required that extrinsic evidence be used to determine the testator’s intent. Phillips is instructive since it presents a situation that at first glance would not cause a Surrogate’s Court Litigation. The Will in Phillips contained a provision whereby the testator gave his residence “and the plot of land appurtenant thereto” to his live-in girlfriend. A dispute arose as to whether the language “and the plot of land appurtenant thereto” referred to the land upon which the residence was built or to another plot of land that was adjacent to the residence and the land upon which it was situated. The Court found the language to be ambiguous and referred the case back to the Surrogate for further proceedings to consider the surrounding evidence of the decedent’s intent.

Estate planning in New York requires the creation of a number of different documents. While it is important to ascertain the intention and desire of the person who is creating the Will or Trust, it is equally necessary to express all intentions and directions in clear and unambiguous language to avoid Will Disputes and dissention between beneficiaries.

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