Wills 4
Q: My mother left the bulk of her estate equally to four of us seven children. According to the will, the last of eight that Mother executed, the three others were disinherited because they had refused to call off a proceeding that they had initiated to remove me as fiduciary of the estate of my uncle. Mother felt that they were airing our family laundry in public.
Q: My mother left the bulk of her estate equally to four of us seven children. According to the will, the last of eight that Mother executed, the three others were disinherited because they had refused to call off a proceeding that they had initiated to remove me as fiduciary of the estate of my uncle. Mother felt that they were airing our family laundry in public.
The will states that the three knew from the beginning that Mother disapproved of what they were doing and were warned on numerous occasions that they would be disinherited unless they called off the lawsuit against me. Our mother always had a very close relationship with me. I was her firstborn.
Mother wrote numerous letters to various of her children both before and after the execution of the will, saying that the lawsuit against me was killing her. To ignore what the three tried to do to me would be more or less giving her silent approval, which she could not do. At the time that the will was executed, Mother was living with my sister out of the country, while I resided here.
A: So long as there is no evidence that you actually compelled your mother to do something she did not want to do, this does not sound like undue influence.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wills 5 : Wrong Envelope
Q: Father and Mother intended to execute mutual wills at a common execution ceremony. By mistake, each executed the will intended for the other. Except for the obvious differences, the wills are identical. Each passes the entire estate to the surviving spouse.
Q: Father and Mother intended to execute mutual wills at a common execution ceremony. By mistake, each executed the will intended for the other. Except for the obvious differences, the wills are identical. Each passes the entire estate to the surviving spouse.
The mistake occurred through the giving of the wills to Father and Mother in wrongly-marked envelopes. The so-called attorney, the attesting witnesses and my parents all proceeded with the execution ceremony without anyone taking care to read the front pages, or even the attestation clauses of the wills, either of which indicates the error.
For probate, Mother has offered the will that Father actually signed, saying that it should be reformed to substitute the name of Father wherever the name of Mother appears, and vice versa. Unlike my siblings, I am anxious for a present share of the estate: for a denial of probate and the operation of the intestacy statute.
A: Under these circumstances, it would be perverse for a court to nullify, rather than sustain, your parents’ testamentary scheme. Not only do the two instruments constitute reciprocal elements of a unified testamentary plan, they both were executed with statutory formality, including the same attesting witnesses, at a contemporaneous execution ceremony. A court will surely uphold such identical mutual wills – both simultaneously executed with statutory formality.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wills 6 : France or Here
Q: Mama was born a French citizen. For many years, she lived in New York, where she was secretary to a senior partner in a law firm. During that time, Mama became a United States citizen. Upon retirement, Mama returned to France, leaving most of her property here. I stayed in California.
Q: Mama was born a French citizen. For many years, she lived in New York, where she was secretary to a senior partner in a law firm. During that time, Mama became a United States citizen. Upon retirement, Mama returned to France, leaving most of her property here. I stayed in California.
Mama’s will says, ‘I hereby declare that I elect that this Will shall be admitted to original probate in the State of New York and shall be construed and regulated by the laws of the State of New York, and that the validity and effect thereof shall be determined by such laws.’
Under the will, I receive about a third of the assets – the Paris apartment, its contents and some money – and the rest goes to a dear friend. Under French law, despite the will, I would be entitled to fully one half of the assets – a one-half ‘forced share’. What will happen?
A: Under section 3-5.1 of New York’s Estates, Powers and Trusts Law, your mother could elect to have the disposition of her property situated in New York governed by the laws of New York. Clearly, she did – so the effect, interpretation, revocation and alteration of any disposition is determined by the law of New York.
In particular, New York law governs the disposition of your mother’s property located here. Her estate is able to escape the forced-heirship laws of France, so beneficial to you, even though your mother was domiciled there at death. You are limited to what she left you in the will.
New York has a long-standing and substantial relationship with your mother. When she moved to France, she apparently retained her United States citizenship – and transferred merely her residence back to France, but not the location of her financial affairs. France’s contact with this estate is merely as your mother’s domicile at death. The friend probably will succeed in arguing against a French forced share.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wills 7 : Discrimination
Q: In my will, I want to create a testamentary trust to finance the college education of female students. The income from the residuary of my estate will be applied to defray the first-year college expenses of five young women who shall have graduated from my old high school. They will be selected by the board of education. Is that OK?
Q: In my will, I want to create a testamentary trust to finance the college education of female students. The income from the residuary of my estate will be applied to defray the first-year college expenses of five young women who shall have graduated from my old high school. They will be selected by the board of education. Is that OK?
A: Whether of not the law permits the school district to co-operate, it may be unwilling to do so. In that case, the court can exercise its ‘general equitable power’ to permit a deviation from the administrative terms of your trust. The court will appoint a successor trustee, replacing the school district with someone able and willing to administer the trust according to its terms.
The Fourteenth Amendment to the United States Constitution bars certain arbitrary, wrongful government actions. A school district is a public entity. It is likely to deem itself barred from co-operating in a trust such as yours. You would do better to establish, from the get-go, a private panel to make the selection.
The Fourteenth Amendment has never required the State to exercise the full extent of its power to eradicate private discrimination. Once you substitute a private panel – or the court does it for you – the minimal participation of the courts in your trust’s administration should not cause any private discrimination in your trust to become ‘public discrimination’.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wills 8 : Biological Grandma
Q: I was adopted-out at birth. Now, my biological grandmother has written a will devising a trust estate to my biological mother’s ‘issue’. Am I entitled to a share?
Q: I was adopted-out at birth. Now, my biological grandmother has written a will devising a trust estate to my biological mother’s ‘issue’. Am I entitled to a share?
A: Under Domestic Relations Law § 117, the rights of an adoptive child – to inheritance and succession from and through his birth parents – generally terminate upon the making of the order of adoption.
The law does not want to give you inheritance rights as the issue of both your biological and your adoptive parents. Powerful policy considerations militate against construing a class gift to include a child adopted out of the family. In detailing adoption procedures, the Legislature has clearly intended that the adopted child be severed from the biological family tree and be engrafted upon a new one.
Moreover, for the good of both sides, adoption records are confidential. It is not lightly to be presumed that a biological ancestor wants this veil of confidentiality to be pierced, which could tend to happen if children who are adopted out of a family are presumed to be takers of gifts to ‘issue’.
You can take only if you are specifically named in your biological grandmother’s will, or if the gift is expressly made to ‘issue’ including those adopted out of the family. If that is your biological grandmother’s intention, then her lawyers should say so explicitly in the will.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wills 9 : Grandchildren
Q: My uncle left a life estate to my aunt and the residue to my father. If my father dies before my aunt, which he did, the residue goes to my father’s “surviving child or children, share and share alike.” My brother, too, died before my aunt.
Q: My uncle left a life estate to my aunt and the residue to my father. If my father dies before my aunt, which he did, the residue goes to my father’s “surviving child or children, share and share alike.” My brother, too, died before my aunt.
Yesterday, my aunt left to join my uncle. At the funeral, my brother's children told me that the word ‘children’ includes ‘grandchildren’ so that they can partake of the testamentary largesse, even though their father predeceased my aunt.
A: In determining a testator’s intent, the courts aim to give the words used in the will their everyday and ordinary meaning. Thus, 'children' means immediate offspring, and it does not include grandchildren unless the will as a whole shows a unmistakable intent that it should.
Moreover, the death of your uncle's life tenant, his widow, controls. This is the common measuring device for the orderly transferences of decedents' assets. The life-estate interest terminated only upon the death of your uncle's widow, your aunt. Your brother's predeceasing her precludes his heirs from asserting that any entitlements ‘inchoately’ vested in your brother before your aunt's death to accrue later to his children’s benefit.
Predictability is a crucial element in the field of decedents' estates. Settled rules are necessary, and they are necessarily relied upon. When a will is being written, every possibility should be considered in advance and not left for the future. If your uncle wanted to provide for your brother’s children, in these circumstances, his attorney was required to use different language.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Without a Hard Hat
Q: While I was working on a construction project, an object fell from the top floor of our new building onto my right foot, buttocks, left hip, ribs and elbow. At the time of the accident, I was walking in an alleyway on the ground level, to shut off a water connection, as directed by my on-site supervisor, without a hard hat.
Q: While I was working on a construction project, an object fell from the top floor of our new building onto my right foot, buttocks, left hip, ribs and elbow. At the time of the accident, I was walking in an alleyway on the ground level, to shut off a water connection, as directed by my on-site supervisor, without a hard hat.
A: If the object was being hoisted or secured – or required securing – you seem to have a good case under Labor Law § 240(1), the ‘Scaffolding Law’ – which requires scaffolding and other devices giving proper protection to workers.
In addition, if the alleyway was normally exposed to falling material or objects, then you appear to have a good case under Labor Law § 241(6), for two reasons. One, because 12 NYCRR 23-1.7(a)(1) mandates the use of appropriate safety devices to protect workers from overhead hazards in areas where they are required to work or pass that are normally exposed to falling material or objects. Two, because 12 NYCRR 23-2.1(a)(2) requires that material and equipment not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger a worker beneath that edge.
As for your failure to wear a hard hat, your attorney will argue that this failure was not a proximate cause of your injuries, let alone the sole one. To a Labor Law §240(1) claim, although sole proximate cause is a defense, mere comparative negligence is not. To a Labor Law § 241(6) claim, although comparative negligence can constitute a valid defense, the failure was not a proximate cause of your injuries since you simply were not hit on his head.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wolf In Sheep’s Clothing
Q: I would like to train members of a foreign terrorist group on how to use humanitarian and international law peacefully to resolve disputes, and to teach its members how to petition the United Nations for relief. Can I?
Q: I would like to train members of a foreign terrorist group on how to use humanitarian and international law peacefully to resolve disputes, and to teach its members how to petition the United Nations for relief. Can I?
A: The group will use these skills as part of a broader strategy to promote terrorism. It will pursue peaceful negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency and preparing for renewed attacks. The group will use the information to threaten, manipulate, and disrupt. It will acquire monetary aid.
Any government has a compelling interest in combating terrorism. Our federal law forbids knowingly providing a foreign terrorist group with material support or resources – e.g. training, expert advice or assistance, personnel and service. This applies to groups that threaten the security of the United States or its nationals, and engage in terrorist activity – e.g. highjacking and assassination, or the use of any dangerous device with intent to endanger individual safety.
Where material support takes the form of money, financial services, lodging, safehouses, false documentation, weapons, lethal substances or explosives, those kinds of aid obviously will help the group's terrorist activities.
But even a wolf in sheep’s clothing called speech activity can initiate a chain of causation that leads from (1) peaceful advocacy to (2) helping to legitimate the group to (3) increased support for the group to (4) an increased supply of material goods that support its terrorist activities. In this way, peaceful advocacy amounts to the forbidden material support.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Wooden Hangers
Q: While fighting a fire in an abandoned public school building, my wife was crushed by the fall of a heavy suspended ceiling. This building had been constructed before the turn of the century. The ceiling had been hanging in the building for as long as anyone can remember.
Q: While fighting a fire in an abandoned public school building, my wife was crushed by the fall of a heavy suspended ceiling. This building had been constructed before the turn of the century. The ceiling had been hanging in the building for as long as anyone can remember.
It turns out that the ceiling had been hung from the roof by combustible wooden straps instead of by metal hangers. Wooden hangers are extremely susceptible to quick collapse in the event of fire. I say the use of wooden hangers violated good and sound construction practice.
A: Our statutes confer a cause of action upon injured firefighters, and the families of deceased firefighters, against any person or entity causing the injury or death by reason of the violation of any governmental statute, ordinance, code or regulation.
Suppose that a statute requires the use of metal hangers in existing non-fireproof, special occupancy structures, but that it applies only to structures and parts thereof constructed after a certain date. The statute might well not apply, if this building was very old.
Even if the law was violated, it appears that the defect was a hidden one and could not so readily have been discovered, even by an inspection. Doubtless the defendant will argue that it was never put on notice of the existence of this defect.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2013-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Workers’ Compensation 1 : Taxi Driver
Q: I lease a taxicab and was injured in an automobile accident while driving it. My no-fault insurance carrier denied me first-party benefits on the ground that I was injured during the course of employment – with the lessor – and directed me to seek workers' compensation benefits.
Q: I lease a taxicab and was injured in an automobile accident while driving it. My no-fault insurance carrier denied me first-party benefits on the ground that I was injured during the course of employment – with the lessor – and directed me to seek workers' compensation benefits.
A: At a Workers’ Comp hearing, one question will be whether drivers are mentioned in the leasing agreement. Did either party intend for taxicab operators to be employees of the lessor? Were you on the lessor’s payroll? Was the lessor legally entitled to hire taxicab operators? Or, to the contrary, had the lessor informed you that its compensation carrier would not pick up operators as employees?
The no-fault carrier will be allowed an opportunity fully to participate in the hearing that determines your employment status – examining and cross-examining witnesses and engaging in discussions with the WCLJ. If the WCL Judge finds that no, you were an independent contractor rather than the lessor's employee, then the no-fault carrier will be allowed to appeal.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Workers’ Compensation 10 : Third-party Settlement
Q: While on the job, I was struck from behind by a van. A Workers' Compensation Law Judge concluded that I had suffered a compensable injury to my lower back, and made awards for my periods of disability.
Q: While on the job, I was struck from behind by a van. A Workers' Compensation Law Judge concluded that I had suffered a compensable injury to my lower back, and made awards for my periods of disability.
I also filed a ‘third-party’ action against the driver and owner of the van. When asked by my attorney to consent to my settlement of this third-party action, my employer wrote, “Consent is given. We are assuming that your settlement is for the policy limit.”
A: Under section 29 of the Workers' Compensation Law, you may pursue a legal action against a third party for damages arising out of the accident underlying your workers' compensation claim. Generally, after the recovery, your employer has a lien, to the extent of past compensation and medical expenses disbursed, plus the right to offset your future compensation benefits – a ‘payment holiday’.
However, unless an employer or carrier unambiguously and expressly reserves this lien or this right to offset when giving consent, the lien or offset is waived. From what you tell me, it does not look like your employer did make such a reservation, which means that you can keep the whole settlement and, moreover, need not suffer an interruption of payments from your employer.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
Workers’ Compensation 11 : Retaliation
Q: For several years, I was employed as a truck driver and general yard man. One day, I injured my shoulder and arm at work. I filed for workers' compensation benefits.
Q: For several years, I was employed as a truck driver and general yard man. One day, I injured my shoulder and arm at work. I filed for workers' compensation benefits.
Afterwards I went into the office to pick up my check and notify my employer when I would be returning. When I mentioned that my arm was still sore, HE responded, “Well, my arm is sore from filling out all of your compensation forms.” Soon I was fired.
A: From what you say, it sounds like the employer's dismissal of you may have been a retaliatory action in violation of Workers' Compensation Law § 120 and like you should file a discrimination complaint with the Workers' Compensation Board, alleging that you were fired because you had filed a workers' compensation claim.
Presumably, the employer will argue either that you were not fired at all or that you were fired for cause. So far as is permitted by the other evidence, the Workers' Compensation Board is always free to credit your testimony over that of the employer.
When reviewing Board decisions regarding retaliatory discrimination under the Workers' Compensation Law, the courts are well aware of the proof problems and have often acknowledged the Board's broad authority to resolve factual questions based on credibility of the witnesses and draw reasonable inferences from the evidence submitted.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878