You are here: / Trusts and Estates

THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT.

The Third Department determined the intent of the decedent was to support a particular local (Oneonta) Catholic school with a charitable gift. The school had closed in 2011. The trustee wanted to distribute the gift equally to the two other named beneficiaries of the trust. Respondents, St. Mary’s Roman Catholic Church, New York and Roman Catholic Diocese of Albany, New York, which operated the closed school, argued the gift should be made to them. The court looked at the nature of the trust as a whole and determined the intent of the gift was to benefit the particular school which closed, not the larger Roman Catholic church generally:

The gift to the school was “charitable in nature and, for cy pres relief [to be appropriate], it was further necessary that the instrument[] establishing the gift[] revealed a general charitable intent and that circumstances had changed rendering impracticable or impossible strict compliance with the terms of the gift instrument[]”… . Strict compliance with the terms of the trust agreement was impossible due to the closure of the school. We accordingly turn to whether the evidence evinces a general charitable intent on the part of decedent, defined “as a desire to give to charity generally, rather than merely to give to a particular object or institution” … . In answering that question, we will read the trust agreement in its entirety and afford its words “their ordinary and natural meaning” … .

Turning to that agreement, all of the institutions to which decedent made gifts are in the City of Oneonta, Otsego County, suggesting an intent to limit her largesse to organizations in that area. When viewed in that context, a direction to distribute part of the residuary trust corpus “to the [school at] 5588 State Route 7, Oneonta, New York 13820” indicates a desire to support a school at that location rather than religious education projects in general. This reading is bolstered by the silence of the trust agreement as to decedent’s Catholic faith and the absence of gifts to the parish or other Roman Catholic institutions. Matter of Gurney, 2017 NY Slip Op 05902, 3rd Dept 7-27-17

TRUSTS AND ESTATES (CY PRES, THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)/CY PRES (THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)/CHARITABLE GIFTS (TRUSTS, CY PRES, THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)

,

NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT.

The Second Department, reversing the Court of Claims, determined a notice of intention to file a claim for medical malpractice was valid. A notice of intention to file a claim, unlike a notice of claim, may be filed by any “interested person,” here the wife of decedent (who was not representing the decedent’s estate at the time):

The claimant’s husband (hereinafter the decedent) was treated at Stony Brook University Hospital (hereinafter Stony Brook) from February 13, 2005, through March 3, 2005. The decedent was later treated at Mount Sinai Hospital from March 18, 2006, until his death on October 30, 2006. On April 19, 2006, the claimant, “as Proposed Guardian for” the decedent, filed a notice of intention to file a claim against the defendant State of New York to recover damages for medical malpractice that allegedly occurred while the decedent was treated at Stony Brook (hereinafter the notice of intention). On January 3, 2008, the claimant was granted letters of administration for the decedent’s estate. On January 11, 2008, the claimant filed a claim against the defendant to recover damages for medical malpractice, wrongful death, and loss of services.

The Court of Claims should have denied the defendant’s motion pursuant to Court of Claims Act §§ 10 and 11 to dismiss so much of the claim as sought to recover damages for the decedent’s conscious pain and suffering arising from medical malpractice. Contrary to the defendant’s contention and the court’s conclusion, the notice of intention filed by the claimant on April 19, 2006, was not invalid on the ground that the claimant lacked the authority to file it on behalf of the decedent, as the notice may be given by “any interested person” … . The Court of Appeals’ decision in Lichtenstein v State (93 NY2d 911) does not compel a different result, as that case involved the filing of a claim itself, as opposed to a notice of intention to file a claim. Matter of Dolce v State of New York, 2017 NY Slip Op 05434, 2nd Dept 7-5-17

COURT OF CLAIMS (NOTICE OF INTENTION TO FILE A CLAIM, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/NOTICE OF INTENTION TO FILE A CLAIM (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/TRUSTS AND ESTATES (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)

,

THE DOCTRINE OF PROMISSORY ESTOPPEL CAN BE APPLIED TO BYPASS THE STATUTE OF FRAUDS IF THE RESULT OF ENFORCING THE STATUTE WOULD BE UNCONSCIONABLE, THE RESULT HERE WAS NOT UNCONSCIONABLE. ​

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissent (raising a different issue), agreeing with the Third Department, held that the doctrine of promissory estoppel can be applied to bypass the Statute of Frauds if enforcing the Statute of Frauds would lead to an unconscionable result. Here, however, disagreeing with the Third Department, the Court of Appeals found that enforcement of the Statute of Frauds would not lead to an unconscionable result. The case involved devised property with a mortgage on it. The decedent, in an earlier will, provided that the mortgage should be paid off with estate funds. However, that provisions was not included in a subsequent will. The petitioners sought to enforce an oral agreement to pay off the mortgage. Because the value of the property was about three times the amount of the mortgage, the Court of Appeals reasoned the result was not unconscionable and the Statute of Frauds should be enforced:

“The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims. But, as Professor Williston observed: ‘The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made'” … ,

In other words, equity “will not permit the statute of frauds to be used as an instrument of fraud” … .

We hold that where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds. * * *

The standard for unconscionability where one party is seeking to avoid the statute of frauds must be equally demanding, lest the statute of frauds be rendered a nullity. …

“The strongly held public policy reflected in New York’s Statute of Frauds would be severely undermined if a party could be estopped from asserting it every time a court found that some unfairness would otherwise result. For this reason, the doctrine of promissory estoppel is properly reserved for that limited class of cases where the circumstances are such as to render it unconscionable to deny the promise upon which the plaintiff has relied” … . Matter of Hennel, 2017 NY Slip Op 05266, CtApp 6-29-17

 

, , ,

PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT.

The Second Department determined plaintiffs had received title to real property free of any encumbrances. Plaintiffs had purchased the property from Edwin Ramsey. Ramsey and his wife. Bertha, had owned the property as tenants by the entirety. Upon the death of Bertha, Edwin owned the property free and clear. Defendant’s argument that the Ramsey’s had agreed to hold separate interests in the property was based upon hearsay, which, standing alone, will not defeat a summary judgment motion:

A disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]…). “[A] surviving tenant in a tenancy by the entirety receives the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against the deceased spouse” … . Here, the plaintiffs demonstrated, prima facie, that they were entitled to summary judgment. Their evidence, including Edwin and Bertha’s 1968 marriage certificate and the 1972 deed, showed that Edwin and Bertha had a tenancy by the entirety in the property, as they were married at the time of the 1972 deed conveying the property to them and the deed did not “expressly declare[ ] [there] to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]). Thus, when Bertha died in 2012, Edwin, as the surviving spouse, “receive[d] the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against” Bertha … . Edwin was thereafter free to convey the property to the plaintiffs, which he did. Cormack v Burks, 2017 NY Slip Op 04252, 2nd Dept 5-31-17

TRUSTS AND ESTATES (PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/REAL PROPERTY (TENANTS BY THE ENTIRETY, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/TENANTS BY THE ENTIRETY (TRUSTS AND ESTATES, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (HEARSAY, SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)

, , ,

MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined petitioner’s motion to renew the petition for leave to file a late notice of claim was erroneously deemed a motion to reargue (by Supreme Court) and was erroneously denied. Leave to file a late notice of claim should have been granted. The wrongful death action was brought on behalf of a county worker who was killed when he fell off the back of a dump truck after the truck allegedly struck a bump in the road. The Second Department noted: (1) the 90-day period for filing a notice of claim runs from the appointment of the administrator of decedent’s estate; (2) the motion presented new evidence which was not previously available and was therefore a motion to renew, not reargue; (3) the county had notice of the facts of the action within the 90-day period; (4) the county did not demonstrate prejudice related to the delay in filing the notice of claim (even though the road defect had been repaired):

The County acquired actual knowledge of the essential facts constituting the claim before a representative of the estate was appointed. The [police department] conducted an investigation, took photographs of, inter alia, the subject roadway condition, obtained a statement from the driver of the truck, and prepared a case report that detailed the nature and the alleged cause of the accident. In addition, … Inasmuch as the County acquired timely, actual knowledge of the essential facts of the claim and actually conducted an investigation, the petitioner made an initial showing that the County was not prejudiced by his delay in serving a notice of claim … . The County claims that it will nonetheless be prejudiced by the delay because the roadway where the accident occurred has been repaved and because it will be unable to locate witnesses. The County, however, had recognized the need for repairs of the roadway before the petitioner was appointed as administrator, and it issued work orders to repair the roadway only a few days after the petitioner was appointed. Thus, any prejudice resulting from the changed condition of the road was not caused by the petitioner’s delay in serving a notice of claim … . In any event, the County took photographs of the defect and inspected the location after the accident … . The County also failed to make a showing that any of the witnesses are unavailable. Thus, the County failed to respond to the petitioner’s initial showing as to lack of prejudice with a particularized showing that the petitioner’s delay in serving a notice of claim will prejudice it in its defense on the merits … . Matter of Kerner v County of Nassau, 2017 NY Slip Op 04277, 2nd Dept 5-31-17

MUNICIPAL LAW (MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRUSTS AND ESTATES (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (MOTION TO RENEW, MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS  (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

,

PLAINTIFF DID NOT HAVE STANDING TO CONTEST PROPERTY TRANSFER TO HER BROTHER BY HER MOTHER BASED UPON AN ALLEGATION MOTHER LACKED MENTAL CAPACITY AT THE TIME OF THE TRANSFER, PLAINTIFF HAD ONLY A POTENTIAL, SPECULATIVE INTEREST IN HER MOTHER’S PROPERTY.

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to bring an action against her brother based upon allegations her brother, who had a power of attorney for their mother, had been unjustly enriched by the transfer of mother’s property to him:

​

The plaintiff, claiming that the mother lacked mental capacity at the time of the transfer, commenced this action against the defendant asserting causes of action to impose a constructive trust, to recover damages for unjust enrichment, for an accounting, and for “appointment of [a] guardian ad litem” for the mother. The defendant moved, inter alia, for summary judgment dismissing the complaint, asserting, among other things, that the plaintiff lacked standing. The Supreme Court denied the motion.

“[S]tanding requires an inquiry into whether the litigant has an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request'” … . Thus, to demonstrate standing, a plaintiff must “establish that he or she will actually be harmed by the challenged action, and that the injury is more than conjectural” … . “The rules governing standing help courts separate the tangible from the abstract or speculative injury” … .

Here, the defendant demonstrated his prima facie entitlement to judgment as a matter of law on the basis that the plaintiff lacked standing to commence this action. “While [the] mother was alive, she had the absolute right to change her intentions regarding the distribution of her assets” … . Accordingly, the plaintiff’s interest in the subject real property and the mother’s other assets was merely a “potential, speculative interest,” insufficient to give rise to standing … . Jacob v Conway, 2017 NY Slip Op 03936, 2nd Dept 5-17-17

 

TRUSTS AND ESTATES (PLAINTIFF DID NOT HAVE STANDING TO CONTEST PROPERTY TRANSFER TO HER BROTHER BY HER MOTHER BASED UPON AN ALLEGATION MOTHER LACKED MENTAL CAPACITY AT THE TIME OF THE TRANSFER, PLAINTIFF HAD ONLY A POTENTIAL, SPECULATIVE INTEREST IN HER MOTHER’S PROPERTY)/CIVIL PROCEDURE (STANDING, PLAINTIFF DID NOT HAVE STANDING TO CONTEST PROPERTY TRANSFER TO HER BROTHER BY HER MOTHER BASED UPON AN ALLEGATION MOTHER LACKED MENTAL CAPACITY AT THE TIME OF THE TRANSFER, PLAINTIFF HAD ONLY A POTENTIAL, SPECULATIVE INTEREST IN HER MOTHER’S PROPERTY)/STANDING (TRUSTS AND ESTATES,  PLAINTIFF DID NOT HAVE STANDING TO CONTEST PROPERTY TRANSFER TO HER BROTHER BY HER MOTHER BASED UPON AN ALLEGATION MOTHER LACKED MENTAL CAPACITY AT THE TIME OF THE TRANSFER, PLAINTIFF HAD ONLY A POTENTIAL, SPECULATIVE INTEREST IN HER MOTHER’S PROPERTY)

,

AFTER FATHER’S DEATH, SON COULD NOT SEEK AN INJUNCTION AGAINST MOTHER AND SUE MOTHER FOR BREACH OF CONTRACT BASED UPON MOTHER AND FATHER’S AGREEMENT NOT TO MODIFY OR REVOKE THEIR WILLS WITHOUT THE MUTUAL CONSENT OF THE PARTIES.

The Second Department determined plaintiff-son’s complaint seeking an injunction prohibiting his mother (defendant) from transferring any property mother inherited from father (Vitus) was properly dismissed. Mother and father, by contract, agreed not to modify or revoke their wills without the “mutual written consent of the parties.” The court found there was no contractual impediment to mother’s transferring (the inherited) property after father’s death and plaintiff could not maintain a breach of contract action during defendant’s lifetime:

​

Contrary to the plaintiff’s contention, there is nothing in the unambiguous language of the agreement which prevents the defendant from making inter vivos gifts or transfers of assets she inherited from Vitus’s residuary estate … . Accordingly, the Supreme Court correctly, pursuant to CPLR 3211(a)(1), directed dismissal of the causes of action for injunctive relief and breach of contract to the extent that they are based on any past and future inter vivos transfers of any property inherited by the defendant from Vitus’s residuary estate.

Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see CPLR 3211[a][7] …), the Supreme Court correctly directed the dismissal of the complaint to the extent that it sought to enjoin the defendant from breaching the agreement by revoking or modifying her will or executing a new will. During the defendant’s lifetime, the plaintiff is precluded from maintaining an action predicated upon a breach of the agreement as it relates to the defendant’s promise not to revoke or modify her will or execute a new will … . Tretter v Tretter, 2017 NY Slip Op 03982, 2nd Dept 5-17-17

 

TRUSTS AND ESTATES (AFTER FATHER’S DEATH, SON COULD NOT SEEK AN INJUNCTION AGAINST MOTHER AND SUE MOTHER FOR BREACH OF CONTRACT BASED UPON MOTHER AND FATHER’S AGREEMENT NOT TO MODIFY OR REVOKE THEIR WILLS WITHOUT THE MUTUAL CONSENT OF THE PARTIES)/CONTRACT LAW (TRUSTS AND ESTATES, AFTER FATHER’S DEATH, SON COULD NOT SEEK AN INJUNCTION AGAINST MOTHER AND SUE MOTHER FOR BREACH OF CONTRACT BASED UPON MOTHER AND FATHER’S AGREEMENT NOT TO MODIFY OR REVOKE THEIR WILLS WITHOUT THE MUTUAL CONSENT OF THE PARTIES)

SURROGATE’S COURT SHOULD HAVE CARRIED OUT WHAT DECEDENT CLEARLY INTENDED, DESPITE THE DEFECT IN THE MEANS CHOSEN TO EFFECT HIS INTENT.

The Second Department, reversing Surrogate’s Court, determined the intent of the decedent was clear from the will and trust documents and should be carried out. The will and trust documents indicated decedent wished the sole asset of his estate, an IRA, be distributed 1/3 to his wife and 2/3 to his daughter. Decedent intended that a living trust he had set up receive the IRA, which all parties agreed was not possible:

​

The wife … contends that pursuant to the terms of the Will, no Testamentary Trust was created into which the IRA proceeds could be transferred, because the Living Trust was neither terminated nor ineffective at the time of the decedent’s death. Such a constrained reading of the Will illustrates “the aptness of Judge Learned Hand’s wise and trenchant observation that courts should be wary of making a fortress out of the dictionary,’ since there is no more likely way to misapprehend the meaning of language . . . than to read the words literally, forgetting the object which the document as a whole’ seeks to achieve” … .

The drafter of the Will testified at his deposition that the decedent not only specifically intended to place the IRA proceeds into the Living Trust, but that the IRA was, in fact, “[t]he only asset” intended to fund the Living Trust. It is undisputed, however, that the Living Trust could not receive the IRA. Under the circumstances, it is evident that the Living Trust was ineffective in carrying out the very purpose for which it was created. Therefore, under the alternative disposition and residuary provisions of article SECOND of the Will, the Testamentary Trust became available to receive the IRA proceeds (see EPTL 13-3.3[a][2]), and it follows that the decedent’s beneficiary designation with respect to the IRA can, and must, be enforced as written, and the order appealed from must be reversed. Matter of Perlman, 2017 NY Slip Op 03957, 2nd Dept 5-17-17

 

TRUSTS AND ESTATES (SURROGATE’S COURT SHOULD HAVE CARRIED OUT WHAT DECEDENT CLEARLY INTENDED, DESPITE THE DEFECT IN THE MEANS CHOSEN TO EFFECT HIS INTENT)

QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID.

The Second Department determined Surrogate’s Court should not have granted the administrator’s (decedent’s father’s) motion for summary judgment dismissing the objections of the decedent’s niece and nephew (objectants) on the ground the niece and nephew did not have standing. Initially decedent’s father, who was entitled to inherit all of decedent’s estate, renounced his inheritance. He then argued the renunciation was invalid and summary judgment was granted in his favor on that ground. The Second Department held there was a question of fact whether the renunciation was invalid:

​

Surrogate’s Court erred in granting the petitioner’s cross motion for summary judgment dismissing the objections at issue based on a finding that the objectants lacked standing to challenge the accounting. Where, as here, a decedent who died intestate was survived by a parent but no spouse and no issue, the whole of the decedent’s estate would be distributed to the surviving parent pursuant to EPTL 4-1.1(a)(4). In that event, the objectants, who would not be distributees, would lack standing as persons interested in the estate … . However, EPTL 2-1.11(c)(1) provides, in part, that any beneficiary of a disposition “may renounce all or part of such beneficiary’s interest.” Further, EPTL 2-1.11(g) provides that “[a] renunciation may not be made under this section with respect to any property which a renouncing person has accepted . . . For purposes of this paragraph, a person accepts an interest in property if such person voluntarily transfers or encumbers, or contracts to transfer or encumber all or part of such interest, or accepts delivery or payment of, or exercises control as beneficial owner over all or part thereof, or executes a written waiver of the right to renounce, or otherwise indicates [an] acceptance of all or part of such interest.” Here, the petitioner failed to establish, prima facie, that his renunciation of his interest in the estate was invalid, resulting in him being the sole distributee and the objectants lacking standing as not being persons interested in the estate. The petitioner adduced no evidence to demonstrate that he accepted an interest in the estate by exercising control over it as its beneficial owner prior to his irrevocable renunciation of his interest pursuant to EPTL 2-1.11. Matter of Kaplan, 2017 NY Slip Op 03750, 2nd Dept 5-10-17

TRUSTS AND ESTATES (RENUNCIATION, QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID)/RENUNCIATION (INHERITANCE, QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID)/INHERITANCE (TRUSTS AND ESTATES, RENUNCIATION,  QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID)

DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED.

The Second Department determined the claim that a loan made by decedent was orally converted to a gift (by the decedent) was not demonstrated. The proof sufficient to prove a gift was laid out by the court:

​

… [T]he plaintiff submitted evidence that the decedent made a loan to the defendant in February 2010 for $50,000, which he did not repay. Contrary to the determination of the court, the defendant’s testimony at his deposition that the decedent told him in 2012 that the loan was “a gift,” without more, does not raise a material issue fact sufficient to defeat the plaintiff’s entitlement to judgment. “It has long been the rule in this State that a debt owing from one party to another will not, by a mere oral declaration subsequently made, be transformed from a debt to a gift” … . To make a valid gift, ” the donor must intend to make an irrevocable present transfer of ownership, there must be delivery of the gift, either by physical delivery of the subject of the gift or a constructive or symbolic delivery, and there must be acceptance by the donee”‘ … . “[I]n the case of an oral gift, the fact of delivery serves to assist, in an evidentiary manner, to confirm the intent of the donor, and to prevent the assertion of fraudulent claims” … . Thus, while the defendant’s allegation provides evidence of the decedent’s intent to make a gift of the loan amount, it provides no evidence that the gift was delivered and, consequently, that the gift took effect … . Scotti v Barrett, 2017 NY Slip Op 03031, 2nd Dept 4-19-17

TRUSTS AND ESTATES (DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED)/GIFTS (TRUSTS AND ESTATES, DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED)

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