New York Probate and Estate Administration Lawyer Blog

Published on: October 25, 2023

Court considered how to allocation wrongful death settlement. Matter of Haag 2016 NY Slip Op 26445

by Stephen Bilkis

When someone dies due to the negligence of another person or entity, a determination must be made as to whether settlement amounts are due to wrongful death or pain and suffering. Amounts that are allocated to “wrongful death” are owed to the decedent’s heirs, while amounts allocated to “pain and suffering” are allocated to the decedent’s estate.

Wrongful death allocations includes financial and emotional impacts, such as lost financial support and companionship. On the other hand, pain and suffering allocations focus on the conscious pain and suffering experienced by the deceased before their death. This compensation aims to address the physical and mental distress endured by the individual as a result of the negligent actions leading to their demise. It considers the anguish, torment, and discomfort the deceased faced during the period between the injury-causing event and their death.

Courts often employ specific formulas to allocate settlement proceeds between these categories, ensuring a fair distribution that reflects the unique circumstances of each case. Attorneys play a crucial role in presenting evidence and arguments to substantiate the extent of both wrongful death and pain and suffering damages. This distinction recognizes the multifaceted nature of loss in cases of wrongful death, encompassing both financial and emotional dimensions.

Published on: October 18, 2023

Surrogate’s Court dismissed allegations of undue influence in a case involving deep family rifts. In re Prob. Proceeding 66 Misc. 3d 1228 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

The case revolves around the contested probate of Santine Porpora’s last will and testament, dated March 14, 2011. The petitioner, John Porpora, seeks to probate the will, while Jan Porpora and Decedent’s grandchildren, Nicole Wagner and Jenny Eisenhauer object, alleging undue influence.

Background Facts

Santine Porpora, the decedent, passed away on August 16, 2018, leaving a contested last will and testament dated March 14, 2011 (the “March 2011 Will”). This document allocated specific bequests of $5,000.00 each to five grandchildren and divided the residue of the estate evenly between the decedent’s son, John Porpora, and daughter, Jan Porpora. John Porpora, as the petitioner, seeks to probate the March 2011 Will, while Jan Porpora and the grandchildren (Objectants) jointly filed objections based on the alleged undue influence exerted by John Porpora during the will’s execution.

Published on: October 2, 2023

Objectant failed to present concrete evidence beyond conclusory allegations of undue influence. In re Eastman, 880 N.Y.S.2d 157 (N.Y. App. Div. 2009)

by Stephen Bilkis

In re Eastman involves the issue of undue influence. Undue influence refers to the exertion of improper or coercive pressure on the testator (the person making the will), influencing them to make decisions that go against their own free will and desires. It involves a level of manipulation that overcomes the testator’s independent judgment, leading to a will that reflects the influencer’s wishes rather than the true intentions of the testator.

Undue influence can manifest in various ways, such as isolating the testator from family and friends, exploiting a position of trust or confidence, or using tactics that instill fear or dependency. For example, a caregiver, close friend, or family member might attempt to unduly influence a vulnerable testator by controlling access to them, limiting communication with others, or even making threats. Financial dependence, declining health, or emotional vulnerability of the testator may increase susceptibility to such influence.

To prove undue influence in the context of a will contest, the objectant typically needs to demonstrate that the influencer’s actions rose to the level of moral coercion, destroying the testator’s free agency. This may involve presenting evidence of manipulation, isolation, or other tactics that compromised the testator’s ability to make independent decisions regarding the distribution of their assets.

Published on: September 4, 2023

Court not convinced by allegations for lack of due execution, lack of testamentary capacity, fraud, and undue influence. In re Rottkamp, 95 A.D.3d 1338 (N.Y. App. Div. 2012)

by Stephen Bilkis

In re Rottkamp, 95 A.D.3d 1338 (N.Y. App. Div. 2012) is about a contested probate case, centered on the last will and testament of Jacob H. Rottkamp. The objectant, Janis Rottkamp, challenges the probate, alleging lack of due execution, the decedent’s lack of testamentary capacity, and the influence of fraud and undue influence.

In New York, proper execution of a will involves specific legal requirements. The testator (the person making the will) must be at least 18 years old and of sound mind. The will must be in writing, signed by the testator at the end, or if the testator is unable to sign, someone else can do so in their presence and at their direction. At least two witnesses, who are not beneficiaries, must sign the will within 30 days of each other and in the testator’s presence. Failure to adhere to these requirements can jeopardize the validity of the will.

Lack of testamentary capacity refers to the legal requirement that a person, at the time of making a will, must possess the mental capacity to understand the nature and consequences of their actions. In the context of wills, testamentary capacity involves the ability to comprehend the extent of one’s property, recognize the natural objects of one’s bounty, and understand the distribution being made in the will. If a testator lacks testamentary capacity, the validity of the will may be challenged.

Published on: August 9, 2023

Court considered how to address the DDS’s failure to timely file objections in wrongful death case. In re Torres 28 Misc. 3d 677 (N.Y. Surr. Ct. 2010)

by Stephen Bilkis

Cases involving wrongful death settlements can be quite complex, as demonstrated in the case of In re Torres, 28 Misc. 3d 677 (N.Y. Surr. Ct. 2010) , involving the New York City Department of Social Services (DSS).

Wrongful death occurs when an individual dies due to the negligent or intentional actions of another party. This legal concept allows surviving family members to seek compensation for their losses resulting from the death. A wrongful death claim typically arises when the deceased would have had a personal injury claim had they survived.

A wrongful death compromise proceeding seeks to determine who to allocate money awarded as a result of the death. The money can be designated as based on a wrongful death claim or a personal injury claim. The damages awarded for wrongful death are meant for the pecuniary losses suffered by the decedent’s distributees, whereas personal injury damages might include compensation for the decedent’s conscious pain and suffering. Proper allocation ensures the right parties receive the appropriate compensation.

Published on: August 7, 2023

Court consided whether a person declared incapacitated under Mental Hygiene Law Article 81 has testamentary capacity. Matter of Curtis 2013 NY Slip Op 51417(U) (2013)

by Stephen Bilkis

In New York, testamentary capacity refers to an individual’s mental soundness at the time of executing a will. As per New York law, the testator must possess the mental acuity to comprehend the nature and consequences of their actions in creating a will. According to EPTL §3-1.1, the testator is required to understand the extent and nature of their property, recognize the natural objects of their bounty, and appreciate the overall testamentary act. The standard for testamentary capacity is distinct from other legal documents, requiring a lower level of cognitive ability. Challenges to testamentary capacity often involve scrutinizing the testator’s mental state at the exact moment of will execution, and evidence of incapacity before or after that moment is considered only if it impacts the testator’s state at the time of execution.

Matter of Curtis, 2013 NY Slip Op 51417(U) (2013) is a case involving significant wealth, complex family dynamics, and a challenge to testamentary capacity. The late Candace Jocelyn Curtis, the recipient of a substantial ten-million-dollar structured settlement, becomes the central figure in a legal drama that involves her purported last will and testament dated January 1, 2012. This blog post aims to dissect the case, exploring its background, key issues, the court’s holding, and the broader implications it holds for probate law.

Background Facts

Published on: July 3, 2023

In a case about allocation of wrongful death award, the court addresses an issue of jurisdiction. In re Mcmillan-Hoyte, 71 Misc. 3d 1042 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

This case involves a petition by Clathina McMillan-Hoyte, as the Administrator of the Estate of Henderson T. Hoyte, seeking approval for the allocation and distribution of settlement proceeds. The matter arises from the allocation of 100% of the settlement to wrongful death, a decision challenged by the Albany County Department of Social Services (DSS). This blog will delve into the background facts, the key issue of jurisdiction, the court’s holding, a brief discussion of relevant legal principles, and a conclusion.

This case involves a wrongful death. Wrongful death refers to a legal claim arising when a person dies due to the negligence, intentional actions, or misconduct of another party. For example, if someone dies due to medical malpractice, the decedent’s survivors and/or estate made have a claim against the negligent medical professional. This cause of action allows the surviving family members or beneficiaries to seek compensation for the losses they suffered as a result of the decedent’s death.

When a wrongful death claim results in a monetary award, the court must determine during a wrongful death compromise proceeding, if the award is for wrongful death or for personal injury. This is a critical determination because it determines who is actually entitled to the money. If the money is awarded for wrongful death, the decedent’s next of kin would be entitled to receive it. However, if the money is for personal injury, then the decedent’ estate would be entitled to receive it. The money would go through the probate process and would ultimately be distributed based on the decedent’s will or intestate succession.

Published on: July 3, 2023

Surrogate’s Court dismissed objections based on lack of testamentary capacity, finding them to be based on mere surmise. In re Horn 68 Misc. 3d 1217 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In re Horn, 68 Misc. 3d 1217 (N.Y. Surr. Ct. 2020), the dispute revolves around the Last Will and Testament dated January 15, 2019, including a claim related to the testamentary capacity of the testator. Testamentary capacity is crucial in ensuring the validity of a person’s will. It reflects the mental and emotional state of the testator, verifying their ability to comprehend the nature of their assets, understand the consequences of their decisions, and identify rightful beneficiaries. Establishing testamentary capacity safeguards against potential exploitation, fraud, or undue influence. A sound mind during will creation ensures that the document truly represents the individual’s intentions. Without testamentary capacity, the legitimacy of the will may be questioned, leading to legal disputes and jeopardizing the deceased’s final wishes. Thus, testamentary capacity is indispensable for maintaining the integrity of the probate process.

Factual Background

Russell L. Van Horn passed away on January 19, 2019, leaving a contested last will and testament dated January 15, 2019 (the “January 15th Will”). While hospitalized due to cancer at Orange Regional Medical Center, Decedent’s nephew, Kiel Van Horn, drafted a will on January 14, 2019 (the “January 14th Will”), incorporating handwritten changes made by the Decedent. The January 14th Will bequeathed property and assets to family members, including a 1/5 share of the estate residue to Objectant Tammy Long. On January 15, 2019, Kiel Van Horn created the January 15th Will, revoking the previous version. Objectant Long contests the January 15th Will, alleging lack of capacity, duress, undue influence, or fraud.

Published on: June 7, 2023

Medical malpractice and wrongful death compromise. Delrossi v. Defendant V, 2004 N.Y. Slip Op. 24462 (N.Y. Sup. Ct. 2005)

by Stephen Bilkis

Delrossi v. Defendant V, 2004 N.Y. Slip Op. 24462 (N.Y. Sup. Ct. 2005) is a complicated case that spans over two decades. The intricacies of this legal battle, involving issues of wrongful death, survivorship claims, and reimbursement rights, present a fascinating study in the interplay between state and federal laws. The case begins as a wrongful death case based on malpractice. Ultimately, there is a fight over who is entitled to the money from the wrongful death claim.

When someone dies due to the negligence of another person, a wrongful death claim can be filed against the negligent parties to recover damages. Through a wrongful death compromise proceeding, the court determines if the damages are for wrongful death or for personal injury.

Background Facts

Published on: June 5, 2023

Surrogate’s Court was asked to construe the terms of a will. In re Will of Paulin 61 Misc. 3d 1214 (N.Y. Surr. Ct. 2018)

by Stephen Bilkis

Will construction is a legal process aimed at interpreting and understanding the intentions of a testator, the person who made the will, when the document’s language is unclear or subject to multiple interpretations. This process becomes necessary when beneficiaries or interested parties raise concerns or disputes regarding the meaning of specific provisions in the will. The court engages in will construction to ensure that the testator’s wishes are accurately carried out, taking into account legal principles and rules of interpretation. This involves analyzing the language used in the will, considering the overall context, and applying relevant legal standards. Will construction proceedings seek to resolve ambiguities, clarify terms, and ultimately ascertain the true intent of the testator, providing clarity for the proper distribution of assets among heirs and beneficiaries.

The case of In re Will of Paulin, 61 Misc. 3d 1214 (N.Y. Surr. Ct. 2018) involved Dorothy Jean Paulin’s contested will, dated December 27, 2006. The objections raised by the decedent’s grandson, Cerious McCray, revolve around allegations of undue influence and a plea for the construction of a crucial clause in the will.

Background Facts