TRUST AND ESTATE CAUSES OF ACTION IN NEW YORK
Types for Causes of Action:
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I. CONSTRUCTIVE TRUST
Elements to prove:
- a confidential or fiduciary relation;
- a promise;
- a transfer in reliance thereon; and
- unjust enrichment.
II. CURTESY
The right of a widower to curtesy was abolished.
III. DOWER
The right of a widower to dower was abolished.
IV. ELECTIVE SHARE
Elements to prove:
- the surviving spouse to have a right of election against their deceased spouse’s estate upon;
- written notice;
- served upon any personal representative of the estate;
- filed and recorded in the court where letters were issued with proof of service; and
- in a pecuniary amount equal to the greater of;
- fifty thousand dollars;
- if the capital value of the net estate is less than fifty thousand dollars, such capital value; or
- one third of the net estate.
Menu of Causes of Action in Law
V. EXPECTED GIFT MALICIOUSLY INTERFERED WITH BY OTHER
No such cause of action.
VI. GIFTS CAUSA MORTIS
Elements to prove:
- it must be made with a view to donor’s death;
- the donor must die of that ailment or peril; and
- delivery must have occurred.
VII. GIFTS INTER VIVOS
Elements to prove:
- possess the required mental condition on;
- the precise occasions;
- when the gift or gifts were made;
- demonstrating that the decedent was capable of;
- formulating and carrying out an intent to presently divest themselves of the gift’s or gifts’ ownership, either actual or symbolic; and
- the donee accepted the gift.
VIII. MISMANAGEMENT OF TRUST ASSETS BY TRUSTEE
Elements to prove:
- a trust and fiduciary relationship must exist between a trustee and beneficiary;
- the trustee owes a duty and there is a standard of care to judge the trustee’s conduct;
- the trustee failed to conform to the applicable standard of care in the management of trust assets; and
- a proximate causal relation between the trustee’s deviation from the applicable standard of care and the loss suffered by the beneficiary.
IX. PROMISE TO MAKE A WILL
No such cause of action to recover an expectation of inheritance.
X. UNDUE INFLUENCE OVER TESTATOR OR SETTLOR
Elements to prove:
- for undue influence or fraud;
- even if the one who exercised the fraud and undue influence;
- is not the immediate beneficiary of the wrongful conduct.
XI. WASTING ANOTHER’S PROPERTY OR INHERITANCE
Elements to prove for trustee’s duty to beneficiary:
- if property or inheritance is held in trust to pay income to the beneficiary for a designated period of time;
- thereafter to pay the principal to another beneficiary;
- there is wasting of property or inheritance;
- the trustee has a duty to the beneficiary;
- who must be entitled to the principal to;
- to make provision for amortization, or
- to sell such property.
the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.