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Bellmore, NY Estate Planning & Complex Litigation Blog

Monday, February 15, 2016

The Rule against Perpetuities

The law allows a person preparing a will to have almost complete control over his or her assets after the testator passes on, but there are limits to such power. A person can restrict a property from being sold, or make sure that it is used for a specific purpose. A property can be bequeathed to a family member as long on condition that the person maintains the family business in a specific city, or exercises daily, or places flowers on the deceased's grave every week, or engages in any other behavior the testator desires. This freedom, however, is not without limits. The time limit on this ability is called the rule against perpetuities. The rule is also referred to as the “dead man’s hand” statute.

The rule against perpetuities is complex and rarely utilized. At the time of the passing of the testator, the heirs of the estate are locked in. These heirs are referred to as “lives in being.” For the purposes of this rule, if a child is conceived but not yet born at the time of the testator’s death, it will be considered a life in being. Once the last living heir named in the will passes away, the restrictions on the property will continue in place as the testator desired for 21 years. The idea is that a testator may control his assets for a full generation after his or her death. The rule is notoriously difficult to apply properly. When it does apply, the conditions on the bequest are abandoned and the gift returns to the residual estate.

What makes this rule so confusing is that, when an individual writes a will, he or she may make gifts to potential children or grandchildren. These children and grandchildren, however, may not be born until years later. If a child has been born at the time the decedent passes away, he or she is subject to the restrictions on the bequest during his or her lifetime. If a grandchild is conceived and born after the decedent’s death, however, the child may avoid the restrictions 21 years after the death of the last heir alive at the time of the decedent’s death. There is no way to predict when this might occur. The rule is archaic and easily avoided. A knowledgeable attorney can help a person planning his or her estate set up an equitable trust. Similar to a will, a trust may impose conditions on the use of assets, but is not subject to the rule against perpetuities. There are other advantages to a trust, but one of the most important is avoiding this unpredictable and confusing rule.


Monday, February 8, 2016

Suing for Injuries Sustained while Playing Sports

Any sports can be dangerous for participants. It does not matter what the sport is, there is always the chance of injury when engaging in physical activity. The chances of injury go up significantly when the sport being played is a contact sport, like football, but injuries are a part of every sport, including baseball, soccer, and basketball. Even golfers can suffer serious injuries.

Generally, a participant in a sport assumes the risk of normal injuries during play. If a concussion or spinal injury is suffered as a result of being tackled in a game of football, he or she will be responsible for his or her own medical bills. Similarly, a basketball player cannot sue for an injury sustained when landing awkwardly after a shot. However, if an injury is caused by a condition not within the scope of a participant’s consent, the loss from that injury can be recovered. A person who consents to play basketball, for example, can sue another participant for starting a physical fight because the person who started the fight was acting improperly. Similarly, a soccer player may be able to file a claim if the injury in question was caused by shoddy conditions on the field.

Individuals wishing to take part in organized leagues will often be asked to sign documents acknowledging their willful participation in the activity. These documents may include waivers of liability. It is important to read these documents carefully. If a waiver of liability is included, participants should make sure that the field of play is well-maintained before engaging in physical activity there. These waivers are not always enforceable. Each state has its own rules about how liability waivers are treated by the courts.

In pickup games with friends, even though there is no waiver of liability signed, there is still an understanding of consent to play the game. Any incidental contact as a result of the sport cannot give rise to a lawsuit. For this reason, it is important that players  go over the extent of acceptable contact before participating.  It is also, for the reasons noted above, important to examine the field of play for any potentially dangerous conditions.


Monday, January 25, 2016

Controlling Estate Planning Through Trusts

How can I control my assets after death?

The practice of estate planning is dedicated to preserving an individual’s control over his or her assets after death. A simple will can control which individuals receive what assets, but a more thorough plan has the potential to do much more. Establishing a trust is the most common method used to exercise this kind of control. 

A trust can issue a bequest restricted by a condition; for example, a trust might be established to pay out $10,000.00 to a specific grandchild only once he or she has reached 18 years of age. Multiple payments can be made to the beneficiaries as long as the trust is funded. The trust can stipulate that the grandchild may have to graduate from college to receive the money, or even that he or she must graduate from a specific school with a minimum grade-point average or membership in a particular fraternity or sorority.

A trust can make the condition of payment as specific or as broad as the creator of the trust wishes. It may, for instance, bequeath benefits to a humanitarian organization on condition that the organization continues to provide food and shelter to the homeless. There is no limit to the number of conditions permissible in a trust document. Even when the conditions go against public policy and general norms and mores established by society, as long as the conditions may be met legally, they will be upheld by the court.

In order to create a trust, there must be a capital investment to fund it and a trustee must be named. The trustee is responsible for protecting the assets of the trust, investing them to the best of his or her ability, managing real estate and other long-term assets, interpreting the trust document, communicating regularly with the beneficiaries of the trust and performing all of these actions with a high level of integrity. Trust assets may be used to pay for expenses of managing the trust as well as to provide a stipend for the trustee if so provided for in the trust document.

If a trust document is not well written, it may be the target of a lawsuit seeking to dissolve the trust and disburse the assets held therein. Even if the trust is defended successfully, the costs of this challenge may deplete its coffers and frustrate the very reason for its creation. In order to avoid these possible pitfalls, it is imperative that a trust document be drafted by an attorney with a high degree of experience in estate planning law.


Monday, January 11, 2016

What is Whiplash?

Whiplash occurs when a person suffers a sudden impact that causes the head to snap forwards, backwards, or sideways. The violent force of this jerking motion causes the muscles, tendons, and ligaments to stretch or tear. Such injuries are sometimes classified as sprains or strains of the neck. Whiplash is most commonly the result of a car accident, but can also be the result of participation in contact sports like football, or from being the victim of an act of violence. Any time the neck is hyperextended or hyperflexed, a person is at risk for whiplash.

Symptoms of whiplash include muscle soreness, stiffness, and tenderness. Victims also typically suffer reduced range of motion. Other common maladies associated with whiplash include headaches, dizziness, fatigue, jaw pain, numbness and weakness in the extremities. Some people with whiplash experience ringing in their ears, blurred vision, and memory problems, though these symptoms are less common. Many people ignore whiplash symptoms which may prolong or worsen their consequences. Those who blame the soreness and stiffness of whiplash  on sleeping in an uncomfortable position and dismiss the pain as temporary often fail to seek treatment in a timely fashion. This can lead to more serious problems, including depression, anxiety, and sleep disturbances. It is important to seek medical attention and to treat whiplash symptoms as soon as possible after an accident in order to avoid complications. 

Doctors' opinions vary on the best way to treat whiplash symptoms. Different doctors may recommend icing the affected area, using painkillers or drugs to numb the pain, using a neck brace or collar to immobilize the neck, physical therapy and exercises to stretch the sore muscles, acupuncture, massage, or chiropractic manipulation. Many physicians may recommend a combination of strategies. Only a licensed medical professional is qualified to give advice on how to treat whiplash. 

An skilled attorney can handle the legal aspects of the accident to help ensure that the injured party can concentrate on the important work of physical recovery. The lawyer will obtain police reports, witness statements and other evidence to prepare a lawsuit against the individual responsible for the whiplash injury.  The lawyer will also document medical expenses, seek approval for required tests, and file a claim or a lawsuit on behalf of an injured party. The lawyer’s experience in dealing with insurance companies ensures that victims of whiplash-related injuries are reimbursed for their pain and suffering as well as for their medical expenses. 


Monday, January 4, 2016

What Is the Spousal Share of an Estate?

There are many reasons why a person might leave a spouse or another loved one out of his or her will. It is possible that the will in question was executed prior to a marriage and was never properly updated. It may also be the case that the husband and wife, though still technically married, are estranged, and do not contribute to one another’s support. An end of life revelation of a past infidelity may anger a spouse enough to rewrite his or her last will and testament. Individuals may make rash decisions to disinherit spouses based on a single argument or misunderstanding. This can be exacerbated by symptoms of dementia. Regardless of the reason, a person who is not named in his or her spouse’s will may petition the court for the spousal share to receive a portion of the estate.

The spousal share of an estate, also called an elective share, is a holdover from the concept of dower in English common law. Traditionally, dower is a portion of a man’s estate guaranteed to a wife when she is widowed to ensure that she does not fall into poverty after her husband dies. The practice continues today without the same restrictions on gender. Every state in America has a provision in its laws to protect an individual whose spouse dies from being left with nothing. Similar provisions for children also exist in some states. Attempts have been made to introduce legislation to protect unmarried romantic partners the same way as married couples, but these attempts have had little success.

The structure of these protections vary from state to state. The value of the estate for the purposes of establishing the spousal share may include the widow’s assets depending on the jurisdiction. Some states provide a widowed spouse a larger share of the deceased’s estate than others, but almost every state prohibits an individual from disinheriting a spouse entirely. The one state that does not permit an elective share to the spouse in a probate case requires that an estate pay a disinherited spouse financial support for up to one year after the death.


Monday, December 28, 2015

"The Baseball Rule" & Sporting Event Injuries

Each year, over 70 million tickets to Major League Baseball games are sold in cities across the country. Fans flock to these games for the live action – the opportunity to see their favorite players in the flesh, enjoy a few hot dogs and belt out the fan favorite “Take Me Out to the Ballgame” with thousands of other die-hards during the seventh inning stretch. Unfortunately, each year some of this “live action” causes injuries to spectators when a foul ball or flying bat (and occasionally, a player trying to get that heroic out) finds its way into the crowded stands. If you’ve witnessed one of these incidents or have been a victim of one, you’ve likely wondered what happens next? Will the team pay for medical care? Does the injured party have a right to sue?

Under “the baseball rule” owners must demonstrate a high degree of care for visitors to their stadiums, taking measures to protect spectators in high-risk areas (such as behind home plate) and areas where spectators can expect to be protected. Under the rule, spectators in the unprotected areas of the stadium should assume the inherent risks of the game that include balls travelling at very high speeds and pieces of equipment that might be propelled into the seating areas.

On the back of nearly every ticket for a professional sporting event, you will find a warning of these inherent risks, and a statement that explains that the team and stadium is not responsible for any injuries resulting from the game. This ticket is seen as a form of an adhesion contract which is a standardized agreement that a party is bound to once they purchase the ticket (even if the ticketholder was unaware of the terms and failed to read them prior to attendance).

In deciding civil suits pertaining to injuries at baseball games and other professional sporting events, the courts have often looked to the baseball rule in making their judgments. It is, however, important to note that not all states adhere to the rule that limits the liability of owners assuming the standard of care to visitors is met.

In one recent case Rountree v. Boise Baseball, LLC, et al., the Idaho Supreme Court balked at the century old baseball rule and ruled that a gentleman who had lost his eye when he was hit with a foul ball at a game of a minor league affiliate of the Chicago Cubs could seek damages from the baseball organization.  

If you’ve been injured at a major sporting event, you may be entitled to seek compensation for your pain and suffering. It’s important that you contact an experienced personal injury attorney who can help you understand the laws in your state, all applicable court rulings and work with you to determine the best strategy for recovery. 


Monday, December 21, 2015

What is a Life Estate?

A life estate is a special designation in probate law referring to a gift to a family member that lasts as long as the life of the recipient. If an individual uses a life estate as part of his or her estate plan, whatever is bequeathed under the life estate will revert back to the residual estate upon the death of the life estate recipient. It is most common in scenarios where an individual starts a new family without children later in life and wants to ensure that the present spouse is taken care of for the remainder of her or his life. The owner of a life estate is called a life tenant. A life estate is often used as an alternative to a trust because it provides the life tenant with more control over the transferred asset.

A life tenant may treat an asset as his or her own. A home may be rented to tenants for income. The life tenant may sell his or her interest in the property to the heirs of the residual estate or to third parties. If the property is sold to a third party, that third party must surrender the property to the residual heirs upon the death of the life tenant.

Though the property belongs to the life tenant, the life tenant has a duty to the residual heirs to keep the property reasonably maintained and in good condition. He or she has an obligation to avoid mortgage arrearages and tax liens while in possession of the property. Exploiting natural resources on the property may be restricted during a life tenancy. A life tenant may not bequeath his or her interest in a life estate through a will because that interest immediately terminates upon the life tenant’s death. Significant changes to the property need to be agreed upon by all parties.

Though there are benefits, there are also drawbacks to establishing a life estate as part of an estate plan. The action could create estate tax issues for the tenant’s estate. In addition, creditors of the tenant may attach liens on the property, creating complicated legal issues for the heirs of the residual estate.


Monday, December 7, 2015

What is the effect of signing a liability waiver before engaging in an activity?

Before engaging in organized physical activities or sports, participants are almost always required to sign a waiver of liability for insurance purposes. Unfortunately, most of these documents use language that is unclear to the layperson. Frequently, people do not read what they sign; others read the words, but do not understand the content. Almost invariably, regardless of comprehension difficulties, individuals sign such waivers since they are a condition of participation. 

The content of liability waivers varies. The most common liability waivers are assumption of risk waivers. These state that the participant understands the inherent risks in the activity. By signing an assumption of risk waiver, for example, the participant acknowledges that he or she cannot sue the organizer of a football game for injuries incurred during the normal course of the game.

Another common liability waiver uses language about negligence or gross negligence. This covers the organizer of the activity for accidents caused by the organizer’s mistakes. A party acts negligently if he or she fails to observe a standard of care that a reasonable person would follow in similar circumstances. An example of negligence would be the failure to properly secure a harness to a person engaging in rock climbing. Waivers of this type are difficult to enforce. If the language of the waiver is difficult to understand, the waiver will usually fail a challenge in court.  

A waiver of gross negligence is unenforceable in most of the states in the U.S. Gross negligence occurs when the organizer fails to observe safety measures that even a careless party would normally follow. If the organizer of a dangerous activity fails to provide any safety equipment at all, this is an example of gross negligence. In spite of the fact that waivers under such circumstances will probably not be enforced, certain companies continue to require that they be signed by participants. 

If a waiver is required to participate in an activity, there is no reason it should not be signed, but there is every reason for the participant to understand what he or she is signing. Individuals should always be aware of the consequences of executing a legal document before signing it. If an injury occurs after a waiver has been signed, only a knowledgeable attorney can advise the client whether the waiver is likely to be enforceable.  


Monday, November 30, 2015

Why Do I Need a Fence if I Have a Pool?

A person who has a pool, trampoline, swing set, or other similar structure in their yard is usually required, by their homeowner’s insurance, if not by law, to also have a fence. This is because these structures are seen by the law as attractive nuisances. This means that a child who sees a such structures, and who may not appreciate the danger they present, is likely to trespass on the property to play in, on, or with them and injure him or herself. The doctrine of attractive nuisance puts an obligation on a homeowner to protect these children who are incapable of protecting themselves. 

The law does not limit liability to instances where the attractive nuisance is a pool or another type of recreational device. Children’s imaginations are vivid enough to turn any sort of dangerous structure or equipment into a playground. Piles of loose lumber and abandoned cars have been found by courts to qualify as attractive nuisances. An attractive nuisance must: 

  • Be an artificial hazard in a place where children are likely to trespass
  • Create unreasonable risk of harm to children incapable of understanding that risk
  • Be a greater risk to potential victims than the utility of the hazard and the burden of its maintenance 

Determining when a child is innocent enough to qualify for protection under the attractive nuisance doctrine is also unclear. A person with diminished mental capacity may be considered a child for these purposes even if he or she is over the age of 18. The determination of who qualifies as a child is made on a case by case basis. 

Using a fence is a good way to make sure that a child passing by is not intrigued by a potentially dangerous condition. Even if the child is able to see over the fence, he or she will have trouble climbing over it, sufficiently discouraging the trespass in order to avoid liability for injuries sustained. A sign warning individuals of danger may be enough to protect a homeowner from liability, except when a child is unable to read the sign. Regularly inspecting property for potentially dangerous conditions and making sure trespassers stay away from your property are the best ways to avoid liability under the attractive nuisance doctrine.


Monday, November 16, 2015

What Do Insurance Policy Limits Mean for My Case?

An individual who causes a injuries to another person can be held economically responsible for those injuries by a court of law. Anticipating this, the law requires that those participating in potentially dangerous activities, such as driving, carry liability insurance to cover costs in case such an injury occurs. These insurance policies are meant to cover the damages suffered by a potential victim in a personal injury case. There are limits to what these policies cover, though they vary based on how much an insured person is willing to pay as a monthly premium. 

If a person is insured for up to $100,000, that individual’s insurance company will pay out up to $100,000.00 for substantiated damages suffered by the victim. If that victim’s injuries are more substantial, that is, if a jury awards more than $100,000, the balance of the money must be paid by the individual who is at fault instead of by the insurance company. 

An individual without insurance is often referred to as “judgment proof” meaning that, even if a jury awards a verdict against that person, the judgment that results cannot be enforced against him or her. As the saying goes, “you cannot get blood from a stone.” If a plaintiff in a personal injury case attempts to enforce a judgment against a defendant who lacks insurance coverage, the defendant may avoid paying by crying poverty and filing for bankruptcy. Such action may discharge the debts depending on the nature of the injuries and the accident. Similarly, any portion of a judgment owed by an insured individual without personal funds will be nearly impossible to collect. 

As a result, regardless of how much an individual has suffered as a result of the negligence of another, the amount he or she is able to collect is limited to the size of the defendant’s insurance policy. It is impractical to push a case to settle above the policy when it is nearly impossible to collect additional money. This pushes cases in which an individual has suffered catastrophic injuries to settle for substantially less than they might be able to receive if they were to go to trial. Although this seems unfair,  a lawsuit is the only practical way to resolve these disputes when a defendant’s insurance policy limits are too small to cover the plaintiff’s pain and suffering.


Monday, November 2, 2015

Five Common Reasons a Will Might Be Invalid

There are several reasons that a will may prove invalid. It is important for testators to be aware of these pitfalls in order to avoid them.

Improper Execution

The requirements vary from state to state, but most states require a valid will to be witnessed by two people not named in the will. Some jurisdictions require the document to be notarized as well. Although these restrictions may be relaxed if the will is holographic (handwritten), it is best to satisfy these requirements to ensure that the testamentary document will be honored by the probate court.

Lack of Testamentary Capacity

Anyone over the age of 18 is presumed to understand what a will is. At the end of life, individuals are often not in the best state of mind. If court finds that an individual is suffering from dementia, is under the influence of drugs or alcohol, or is incapable of understanding the document being executed for some other reason, the court may invalidate the will on the grounds that the individual does  not have testamentary capacity.

Replacement by a Later Will

Whenever an individual writes a new will, it invalidates all wills made previously. This means that a will might be believed to be valid for months until a more recently executed document surfaces. The newest will always takes precedence, controlling how assets should be distributed.

Lack of Required Content

Every will is required to contain certain provisions to carry out its purpose. These provisions, ensure that the testator understands the reason for executing the document.  Although these provisions vary from state to  state, some are common to all jurisdictions. It should be clear that the document is intended to be a will. The document  should demonstrate an individual’s wishes in regard to what should happen to his or her property after death. A proper will should also include a provision to appoint an executor to act as an agent for the estate and enforce the terms of the will. If the document  lacks any of these provisions, the will may be declared invalid. 

Undue influence or fraud

A will that was executed under undue influence, coercion or fraud will be invalidated by a court. If a will has been presented to a testator for a signature as if it were any other document, like a power of attorney or a business contract, the court will find that the will was fraudulently obtained and will not honor it. If an individual providing end of life care with exclusive access to the testator threatens to stop care unless a will is modified, that modification is considered to be the result of undue influence and the court will not accept it.


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Bellmore, NY and assists clients throughout Long Island, including: the north shore of Long Island, The Town Of Oyster Bay, The Town Of North Hempstead, The Town Of Hempstead, The Town Of Huntington, Nassau & Suffolk Counties & throughout the Five Boroughs of The City Of New York.



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