New York Estate Planning May Prevent Post Death Disputes

The planning of an estate in New York has many benefits. The primary goal is to establish documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and a Living Trust that provide a definite and unambiguous expression of a person’s desires. With regard to a Last Will, the document should be a careful statement regarding the disposition of estate assets to named beneficiaries. New York Estate Lawyers assist individuals with the drafting and execution of these papers.

As discussed in many posts in the New York Probate Lawyer Blog when a person dies intestate (without a Will), State statutes, such as Surrogate’s Court Procedure Act Section 4-1.1, determine who is to inherit the estate property.The obvious need for the expression of a testator’s wishes with extreme clarity is because the testator is deceased and can no longer communicate what he wants to happen with his assets. A person’s death, therefore, prevents the survivors from seeking clarity or additional information that may be essential in post-death proceedings such as probate proceedings, Will Contests and cases to construe the meaning of certain Will provisions.

When estate litigation occurs in the Surrogate’s Court, certain rules of evidence may prevent survivors from repeating statements made by a decedent. The rationale for these types of rules, known as the Dead Man’s Statute, is to prevent what is known as hearsay testimony. The decedent is not available for cross-examination. Also, the decedent is unable to refute statements that are attributed to him. For example, in a recent case that was reported by Amaris Elliot-Engel in the New York Law Journal on May 19, 2017, Brooklyn Surrogate John Ingram ruled that the decedent’s alleged wife could not testify regarding her right to exercise her elective share of the decedent’s estate.

A similar issue appears to be the subject in recent lawsuits concerning Fox News and its now deceased leader, Roger Ailes. As reported by Ashley Cullins in the Hollywood on May 18, 2017 in an article entitled “How Roger Ailes’ Death Could Complicate Legal Claims Over His Fox News Tenure”, there are numerous questions as to whether a judge would allow as evidence statements that are attributed to Mr. Ailes during his lifetime. Anyone who is repeating these statement is giving hearsay testimony. Hearsay is generally unreliable for the truth of such matters since the statement cannot be disputed by the person who allegedly made them and such person, if deceased, cannot be cross-examined as to the authenticity of such remarks.

Litigation in Surrogate’s Court can be very complex and time consuming.  I have been involved in many estate litigation cases such as Will Contests and Kinship cases.  Please call me now to discuss your issue.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Queens and Manhattan. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.


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