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Bellmore, NY Estate Planning & Complex Litigation Blog

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.


Monday, October 26, 2015

How do I know if I have a slip and fall case?

A person who slips or trips on another person’s property may be entitled to damages for resultant injuries. In order for a slip and fall to be compensable, there must have been an unsafe condition on the property. Unsafe conditions include icy accumulation, wet or slippery floors, badly damaged sidewalks and debris underfoot, among many others.

In addition to the existence of unsafe conditions, in order for the injury to be compensable, the owner must have known that the dangerous condition existed and allowed it to persist.This is the most difficult element for a victim in a slip and fall case to prove. Sometimes, the owner of the property causes the dangerous condition, such as when the floors of a department store are freshly mopped and slippery. At other times, the danger is not caused by the owner, but is obviously apparent, as is the case after a snowstorm. The owner of the property is entitled to a grace period to correct dangerous conditions.  But, while the problem is being fixed, the owner should put up a notice to warn individuals of the possible danger. Yellow boards are commonly used to warn of wet floors, and orange cones are often used to warn of ongoing construction.

If the dangerous condition is obvious enough to a casual observer, it may not be compensable since an individual has a duty to use a reasonable degree of care for his or her own safety. Even if the owner is at fault, if the injury is no more severe than a bruise or a slight sprain, a lawsuit is probably not the best course of action.  Lawsuits are usually reserved for more serious injuries like broken bones or spinal damage.  Only an experienced attorney can advise the individual involved in a slip and fall incident as to whether the case is strong enough to warrant a claim. 


Monday, October 19, 2015

Glossary of Estate Planning Terms

Will - a written document specifying a person’s wishes concerning his or her property distribution upon his or her death.

In order to be enforced by a court of law, a will must be signed in accordance with the applicable wills act.

Testator/Testatrix - the person who signs the will.

Heirs - beneficiaries of an estate.

Executor/Executrix - the individual given authority by the testator to make decisions to put the testator’s written directions into effect.

Once the will is entered into probate, the executor’s signature is equivalent to the testator’s. The executor has a legal duty to the heirs of the estate to act in the best interest of the estate, and may collect a fee for performing such service.

Administrator/Administratrix - the person who assumes the role of the executor when a person dies without a will (intestate).

The Administrator must apply with the local probate office and may be required to provide a bond to be held in escrow as collateral for control over the assets of the estate.

Codicil - an amendment to a will.

In order to be valid, a codicil must comply with all the requirements of the applicable wills act.

Holographic Will- a handwritten will. 

Holographic wills are often exempt from requirements of the applicable wills act.

Bequest - a gift given by the testator to his or her heirs through a will.

Residual Estate - the balance of a testator’s belongings after debts have been paid and specific bequests have been distributed. 

Intestate - not having signed a will before one dies; a person who dies without having signed a will.

Life Estate - a bequest that gives an heir the right to have exclusive use of a property for the remainder of his or her life, but without the power to transfer such property upon the death of that heir.

The property will transfer to the heirs of the residual estate after the death of the beneficiary of the life estate.

Per stirpes - a Latin phrase precisely translated as “by the branch” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided equally among that beneficiary’s own heirs.

 An alternative to per capita, described below.

Per capita - a Latin phrase precisely translated as “by the head” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided among the testator’s remaining heirs.

 An alternative to per stirpes, described above.

While it is a good idea to have a basic understanding of fundamental estate planning vocabulary, this cannot serve as a substitute for the services of an experienced attorney.


Monday, October 5, 2015

What are punitive damages?

Punitive damages are a special class of damages paid by a defendant in a lawsuit.  They are not designed to compensate the injured party for any damages suffered, but instead to punish the defendant for some egregious action and to discourage others from enaging in that specific behavior.  Punitive damages are reserved for special cases where a defendant’s behavior is extraordinarily bad. 

In order for a case to be considered for punitive damages, the defendant had to have acted willfully. For example, if a company decided to take a product to market, knowing that it had a dangerous defect, it could be held accountable for punitive damages.. It does not make sense to allow punitive damages in a case where only negligent behavior is alleged because, presumably, a negligent action was an accident and there is little need for deterrence.

When a court decides on a punitive damage award, it will consider how bad the conduct in question really was, as well as the wealth of the defendant.  After all, being forced to pay $10,000.00 is a much greater punishment for a person earning $50,000 a year than someone earning $50,000,000 a year.  Even though their purpose is not to compensate a plaintiff for injuries, usually punitive damages are paid to the plaintiff, leaving him or her in a much better position than he or she was in before a lawsuit was filed. 

The United States is one of the few countries in the world that permits punitive damages.  They are also common in China, Australia, and New Zealand.  In parts of the United Kingdom, they are available in very limited circumstances.  In Japan and most of Europe, it is nearly impossible to get a punitive damage award.


Monday, September 28, 2015

Avoiding Common Mistakes in Estate Planning

Estate planning is designed to fulfill the wishes of a person after his or her death. Problems can easily arise, however, if the estate plan contains unanswered questions that can no longer be resolved after the person's demise. This can, and frequently does, lead to costly litigation counter-productive to the goals of the estate. It is important that will be written in language that is clear and that the document has been well proofread because something as simple as a misplaced comma can significantly alter its meaning.

Planning for every possible contingency is a significant part of estate planning. Tragic scenarios in which an estate planner’s loved ones predecease him or her, though uncomfortable, must be considered during the preparation of a will to avoid otherwise unforeseen conflicts. 

Even trained professionals can make significant mistakes if they are not well versed in estate planning. An attorney who practices general law, while perfectly capable of preparing simple wills, may not understand the intricacies of trusts and guardianships. A great many attorneys, not aware of the tax consequences of bequests involving IRAs, may leave heirs with unnecessary financial obligations. If an attorney is not knowledgeable enough to ask the proper questions, he or she will be unable to prepare an estate plan that functions efficiently and ensures the proper distribution of the estate's assets.

In spite of the wealth of an individual, the estate may be cash deficient if that wealth is tied up in assets at the time of the individual's death. Problems can also result if an estate planner has distributed assets into joint bank accounts or accounts with pay on death provisions. If the executor of the estate does not have access to funds to pay the estate's bills or taxes, the heirs of the estate may run into trouble.

Even if estate planning is handled well from a logistical point of view, lack of communication with loved ones can interfere with a will's desired execution. A tragedy that incapacitates the testator can occur suddenly, so it is imperative that a savvy estate planner confers with loved ones as soon as possible, making them aware of any future obligations, such as life insurance premiums that must be paid and informing them of the location of any probate documents and inventories of assets. Such conversations ensure that the individual's wishes will be carried out without complications or delay in the event of an unexpected incapacity.

In addition to communicating logistical information, it is also essential to schedule a personal conversation with loved ones that makes clear any sentimental bequests or large gifts that require explanation. This avoids the shock or discomfort that may arise after one's death during which a well-thought-out decision is questioned as impulsive or irrational. Such direct communication of one's plans avoids unnecessary envy, arguments or rivalry among family and friends.

Consulting with attorneys who specialize in estate planning is the cornerstone of creating a plan to ensure that one's desires are carried out and that all the bases are covered. Estate planning attorneys serve as invaluable repositories of all information necessary to strategizing a plan that not only meets one's personal needs and desires, but is legally binding.


Monday, September 14, 2015

When Is My Hot Beverage Too Hot?

A lawsuit over an excessively hot beverage made headlines two decades ago. A 79-year-old woman spilled a cup of McDonald's coffee in her lap and suffered third degree burns. A jury awarded her millions in damages; since then, almost every major chain that serves coffee has been a defendant in a similar suit.

In the McDonald's case, the coffee was brewed at 195 to 200 degrees Fahrenheit and then maintained at 180 to 190 degrees. This was consistent with the range recommended by the National Council of Chain Restaurants, but hotter than the temperatures some burn experts considered safe. The plaintiffs' attorneys argued that the high temperature was "unreasonably dangerous" and "inherently defective."

McDonald's currently serves coffee at 176 to 194 degrees. For approximately a decade, Starbucks has been selling coffee at 175 to 185 degrees. According to the Specialty Coffee Association of America, the standard serving temperature is 160 to 185 degrees. For a number of practical reasons, companies brew coffee and tea at temperatures that exceed the burn thresholds of skin, and beverage spills continue to send people to the hospital with scalding injuries.

Much of the coffee served today is as hot or hotter than the coffee that led to the 1994 McDonald's lawsuit. Instead of lowering temperatures, companies place strongly worded warnings on their coffee cups. They also have worked harder to present expert witness testimony regarding their reasons for serving the coffee at high temperatures.

In a 1998 case, Bunn-O-Matic, a manufacturer of coffeemakers, won a suit against it when the Seventh Circuit Court of Appeals unanimously held that 179 degrees was not "unreasonably dangerous.” New cases are continually filed, some involving hot chocolate and hot cider, with both the reasonableness of temperatures and the adequacy of warnings still points of contention.

If you have been burned by a hot beverage, contact an experienced personal injury attorney to advise you about whether you have a viable case.


Monday, September 7, 2015

What would happen if another child is born after establishing an estate plan?

This question presents a fairly common issue posed to estate planning attorneys. The solution is also pretty easy to address in your will, trust and other estate planning documents, including any guardianship appointment for your minor children.

First, its important to note that you should not delay establishing an estate plan pending the birth of a new child.  In fact, if your planning is done right you most likely will not need to modify your estate plan after a new child is born.  The problem with waiting is that you cannot know what tomorrow will bring and you could die, or become incapacitated and not having any type of plan is a bad idea. 

In terms of how an estate plan can provide for “after-born” children, there are a few drafting techniques that can address this issue.  For example, in your will, it would refer to your current children typically by name and their date of birth. Then, your will would provide that any reference to the term "your children" would include any children born to you, or adopted by you, after the date you sign your will.

In addition, in the section or article of your will that provides how your estate and assets will be divided, it could simply provide that your estate and assets will be divided into separate and equal shares, one each for "your children." That would mean that whatever children you have at the time of your death would receive a share and thus the will would work as you intend, even if you did not amend it after having a new child. 

On a side note, you should make certain that your plan does not give the children their share of your estate outright while they are still young.  Rather, your will or living trust should provide that the assets and money are held in a trust structure until they are reach a certain age or achieve certain milestones such as college graduation or marriage. Any good estate planning attorney should be able to advise you about this and help walk you through the various options you have available to you.


Wednesday, August 26, 2015

What is soft tissue damage and how is it treated?

Soft tissue damage refers to damage done to the muscles, ligaments, and tendons throughout the body.  Often referred to as sprains, strains, contusions and tendonitis, soft tissue damage is usually caused by a traumatic event such as a slip and fall or a traffic accident.  It can result in swelling, bruising, and loss of function.   Immediately after an injury, the area affected by soft tissue damage should be protected, rested from any strenuous activity, kept cool with ice to regulate swelling, compressed and elevated.  If pain continues after 72 hours, it is likely that the injury is more than a simple sprain or strain.  When the soft tissue is inflamed for a long period of time it could result in serious, long-term damage.

When soft tissue damage exists in the back and the spinal column is compressed, it may result in what is commonly referred to as a pinched nerve.  Each vertebrae is separated by a gel filled sac that acts as a cushion between the bones.  When the muscles surrounding and supporting the spine are inflamed, it pushes the bones together, squeezing the sac and causing it to bulge, called a bulging disc.  In more serious cases, the sac actually ruptures.  This is called a herniated disc.  Besides being incredibly painful, these conditions can result in weakness or numbness in the extremities, known as radiculopathy.

MRI can confirm the existence of a bulging or herniated disc.  Treatment varies depending on the severity of the case.  For some, physical therapy and chiropractic manipulation will be enough to heal the damaged area.  This is considered conservative treatment.  There is the possibility that an epidural injection to the affected area could help reduce inflammation and give the injury an opportunity to heal.  If nothing else is successful, spinal fusion or decompression may be an option to reduce pain. A doctor should be consulted before engaging in any sort of treatment.  


Monday, August 17, 2015

What is a class action lawsuit?

Normally when a person suffers an injury as a result of another person’s mistake or wrong doing, that injured party has the right to file a lawsuit.  Sometimes, an injured party has a right to join a lawsuit that involves a large group of people.  These types of lawsuits are commonly referred to as class action lawsuits.  In these cases, the party who filed a lawsuit must be able to adequately represent the interests of all those who were also allegedly injured by the actions of the defendant.

A court must certify a class action lawsuit.  In order to be certified as a class, two main criteria must be met.  First, all the questions of law or fact in dispute must be common to all plaintiffs in the class.  That means that if a case requires that a plaintiff prove facts specific to his or her own case, it should not be included in the class.  Second, the number of plaintiffs must be large enough to make it impractical to try each case individually.  That number varies and will be decided on a case-by-case basis. 

The point of the class action is to maintain judicial efficiency.  The court system would be bogged down if every single person who purchased a drink with an improper label filed a separate lawsuit claiming unfair business practices.  The legal costs to the defendant would be obscene.  The logistics of bringing the same witnesses to court to testify over and over again would be impossible to deal with.  Class action lawsuits also serve to hold companies accountable for small mistakes that affect many people.  A company that practices deceptive advertising may only trick each consumer out of the price of one of their goods, hardly worth a lawsuit, but when hundreds of consumers band together to enforce their rights, justice is better served.

Once a group of individuals files a lawsuit against a defendant for an alleged wrongdoing, they are responsible to seek out other people who might have been affected and offer them an opportunity to join the class.  Each individual can choose whether to join the class and accept the settlement presented to the entire class, or to preserve his or her own right to file his or her own lawsuit.  Common class action lawsuits include suits resulting from an environmental disaster such as an oil spill, prescription drugs with unforeseen side effects, defective products, misleading advertising, price fixing and price gouging, securities fraud and employment discrimination suits.


Thursday, August 6, 2015

Negotiating a Commercial Lease? Be Sure to Address These Issues

When it comes time for your business to move into a new commercial space, make sure you consider the terms of your lease agreement from both business and legal perspectives.  While there are some common terms and clauses in many commercial leases, many landlords and property managers incorporate complicated and sometimes unusual terms and conditions.   As you review your commercial lease, pay special attention to the following issues which can greatly affect your legal rights and obligations.

The Lease Commencement Date
Commercial leases typically will provide a rent commencement date, which may be the same as the lease commencement date. Or not. If the landlord is performing improvements to ready the space for your arrival, a specific date for the commencement of rent payments could become a problem if that date arrives and you do not yet have possession of the premises because the landlord’s contractors are still working in your space. Nobody wants to be on the hook for rent payments for a space that cannot yet be occupied. A better approach is to avoid including in the lease a specific date for commencement, and instead state that the commencement date will be the date the landlord actually delivers possession of the premises to you. Alternatively, you can negotiate a provision that triggers penalties for the landlord or additional benefits for you, should the property not be available to you on the rent commencement date.

Lease Renewals
Your initial lease term will likely be a period of three to five years, or perhaps longer. Locking in long terms benefits the landlord, but can be off-putting for a tenant. Instead, you may be able to negotiate a shorter initial term, with the option to extend at a later date.  This will afford you the right, but not the obligation to continue with the lease for an additional period of years.   Be sure that any notice required to terminate the lease or exercise your option to extend at the end of the initial lease term is clear and not subject to an unfavorable interpretation.

Subletting and Assignment
If you are locked into a long-term lease, you will likely want to preserve some flexibility in the event you outgrow the space or need to vacate the premises for other reasons. An assignment transfers all rights and responsibilities to the new tenant, whereas a sublease leaves you, the original tenant, ultimately responsible for the payments due under the original lease agreement. Tenants generally want to negotiate the right to assign the lease to another business, while landlords typically prefer a provision allowing for a sublease agreement.

Subordination and Non-disturbance Rights
What if the landlord fails to comply with the terms of the lease? If a lender forecloses on your landlord, your commercial lease agreement could be at risk because the landlord’s mortgage agreement can supersede your lease. If the property you are negotiating to rent is subject to claims that will be superior to your lease agreement, consider negotiating a “nondisturbance agreement” stating that if a superior rights holder forecloses the property, your lease agreement will be recognized and honored as long as you fulfill your obligations according to the lease.


Wednesday, July 29, 2015

If you're over 70 and have considerable assets, should you consider Medicaid Planning?

There are many factors to consider when deciding whether or not to implement Medicaid planning.  If you’re in good health, now would be the prime time to do this planning. The main reason is that any Medicaid planning may entail using an irrevocable trust, or perhaps gifts to your children, which would incur a five-year look back for Medicaid qualification purposes. The use of an irrevocable trust to receive these gifts would provide more protection and in some cases more control for you.

As an example, if you were to gift assets directly to a child, that child could be sued or could go through a divorce, and those assets could be lost to a creditor or a divorcing spouse even though the child had intended to hold those assets intact in case they needed to be returned to you. If instead, you had used an irrevocable trust to receive the gifted assets, those assets would not have been considered the child’s and therefore would not have been lost to the child’s creditor or a divorcing spouse. You need to understand that doing this type of planning, and using the irrevocable trust, may mean that those assets are not available to you and therefore you need to be comfortable with that structure.

Depending upon the size of your estate, and your sources of income, perhaps you have sufficient assets to pay for your own care for quite some time. You should work closely with an attorney knowledgeable about Medicaid planning as well as a financial planner that can help identify your sources of income should you need long-term care. Also, you should look into whether or not you could qualify for long-term care insurance, and how much the premiums would be on that type of insurance.


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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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