You are here: / / EVEN THOUGH THE PROCEEDS OF A TRUST HAD BEEN DISTRIBUTED TO DECEDENT BEFORE...

EVEN THOUGH THE PROCEEDS OF A TRUST HAD BEEN DISTRIBUTED TO DECEDENT BEFORE HIS DEATH, THERE WAS A QUESTION OF FACT WHETHER DECEDENT RETAINED THE PROCEEDS AT THE TIME OF DEATH; IF SO, PURSUANT TO THE WILL, THE BEQUEST DID NOT LAPSE AND THE PROCEEDS WOULD BE DISTRIBUTED TO THE NAMED BENEFICIARIES (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined there was a question of fact whether the decedent possessed the proceeds of a trust at the time of his death. If so, pursuant to the will, those proceeds would pass to the named beneficiaries:

“A specific disposition is a disposition of a specified or identified item of the testator’s property” (EPTL 1-2.17). “[U]nless the subject of a specific legacy exists, unchanged in substance, at the date of the will, there results an ademption, complete or partial according to the facts” … . A specific bequest fails if the article specifically bequeathed has been given away, lost or destroyed during the testator’s lifetime … . “A conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it” (EPTL 3-4.3).

Here, the subject bequest to the objectants, namely, the net proceeds received by the decedent under the trust, was a specific disposition … , subject to whole or partial ademption … . However, questions of fact exist, inter alia, as to whether at the time of his death the decedent retained the property distributed to him upon the termination of the trust, such that it passes to the objectants pursuant to Paragraph THIRD of the will. Matter of Johnson, 2022 NY Slip Op 00425, Second Dept 1-26-22

 

You might also like
$1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT).
EXPERT AFFIDAVIT DID NOT DEMONSTRATE, PRIMA FACIE, THAT DEFENDANT DOCTORS DID NOT DEPART FROM GOOD AND ACCEPTED PRACTICE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
SECOND DEPARTMENT JOINS THE THIRD AND FOURTH DEPARTMENTS IN HOLDING INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED AS DEFENDANTS IN A NOTICE OF CLAIM.
ALTHOUGH THE READY-FOR-TRIAL ANNOUNCEMENT WAS TIMELY, IT WAS ILLUSORY BECAUSE THE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS HAD NOT BEEN FILED; INDICTMENT PROPERLY DISMISSED (SECOND DEPT).
HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT).
Requirements of Adverse Possession by “Tacking” Explained (Not Met Here)
QUESTIONS OF FACT ABOUT THE LIABILITY OF THE ELEVATOR COMPANY UNDER A NEGLIGENT MAINTENANCE THEORY OR A RES IPSA LOQUITUR THEORY REQUIRED THE DENIAL OF THE COMPANY’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF ALLEGED THE ELEVATOR SUDDENLY ACCELERATED AND THEN STOPPED (SECOND DEPT).
In a Case Consolidated with the Case Summarized Immediately Above, Defendant Was Entitled to Summary Judgment After Demonstrating None of the Three Theories of “Tort Liability Arising from Contract” Applied—Because the Facts Are Not Discussed, It Is Not Clear Why All Three Potential Theories Were Addressed in this Action But Only One Needed to Be Addressed in the Other (To Be Safe, Address All Three?)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PETITIONER FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES AFTER THE APPLICATION... THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND...