XVI. Trust Estate

I. CONSTRUCTIVE TRUST

Elements to prove:

  1. a confidential or fiduciary relation;
  2. a promise;
  3. a transfer in reliance thereon; and
  4. 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:

  1. the surviving spouse to have a right of election against their deceased spouse’s estate upon;
  2. written notice;
  3. served upon any personal representative of the estate;
  4. filed and recorded in the court where letters were issued with proof of service; and
  5. in a pecuniary amount equal to the greater of;
    1. fifty thousand dollars;
    2. if the capital value of the net estate is less than fifty thousand dollars, such capital value; or
    3. one third of the net estate.

V. EXPECTED GIFT MALICIOUSLY INTERFERED WITH BY OTHER

No such cause of action.

VI. GIFTS CAUSA MORTIS

Elements to prove:

  1. it must be made with a view to donor’s death;
  2. the donor must die of that ailment or peril; and
  3. delivery must have occurred.

VII. GIFTS INTER VIVOS

Elements to prove:

  1. possess the required mental condition on;
  2. the precise occasions;
  3. when the gift or gifts were made;
  4. demonstrating that the decedent was capable of;
  5. formulating and carrying out an intent to presently divest themselves of the gift’s or gifts’ ownership, either actual or symbolic; and
  6. the donee accepted the gift.

VIII. MISMANAGEMENT OF TRUST ASSETS BY TRUSTEE

Elements to prove:

  1. a trust and fiduciary relationship must exist between a trustee and beneficiary;
  2. the trustee owes a duty and there is a standard of care to judge the trustee’s conduct;
  3. the trustee failed to conform to the applicable standard of care in the management of trust assets; and
  4. 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:

  1. for undue influence or fraud;
  2. even if the one who exercised the fraud and undue influence;
  3. 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:

  1. if property or inheritance is held in trust to pay income to the beneficiary for a designated period of time;
  2. thereafter to pay the principal to another beneficiary;
  3. there is wasting of property or inheritance;
  4. the trustee has a duty to the beneficiary;
  5. who must be entitled to the principal to;
    1. to make provision for amortization, or
    2. to sell such property.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.