In a proceeding challenging the validity of certain trusts and transactions involving the decedent’s assets that occurred shortly prior to his death, the petitioner, who was the surviving spouse and limited administrator of the decedent’s estate, sought an order directing, the resumption of the respondent’s deposition and compelling him to respond to certain questions.

During the respondent’s deposition, he was advised by his attorney to refuse to answer certain questions on the basis of the Fifth Amendment privilege against self-incrimination. The Nassau County, New York Surrogate’s Court noted that a witness’ refusal to answer a question during a deposition is governed by 22 NYCRR 221.2, which provides, that a witness shall respond to all questions at a deposition, and an attorney shall not direct a witness not to answer a question, except as provided in CPLR 3115, or in order to preserve a privilege or right of confidentiality.

The rule further provides that if the witness does not answer a question, the examining party shall have the right to complete the remainder of the deposition. The court found that the privilege against self-incrimination, claimed by the respondent, exists under the U.S. and New York Constitutions. The privilege will apply even when a resulting prosecution is possible, but not definite, and where the party’s testimony may provide only a portion of the total proof necessary for prosecution of the witness.

Nevertheless, the court ruled that the availability of the privilege is not simply based upon a witness’ declaration that an answer would be incriminatory. Rather, it is dependent upon the court’s assessment of whether the claim is justified. In opposition to the petitioner’s application, respondent’s attorney alleged that although the respondent did not fear criminal prosecution as a result of any response to the questions posed, he was concerned that they might elicit responses indicating a “scintilla of belief” that his conduct was inappropriate.

This would jeopardize his right to obtain a liquor license for his business selling alcoholic beverages. The court disagreed and refused to extend the privilege against self-incrimination where the deposition might reflect poorly on the party’s conduct or impact upon his livelihood. Given the uncertainty of the situation, the respondent was directed to appear with his attorney to testify, “in camera” (in private with the judge), regarding the facts underlying his refusal to answer the questions presented by the petitioner’s attorney, so that a determination could be made regarding the application of the privilege, and the scope of his continued deposition.

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The New York estate of a deceased woman may not sue her long-time domestic partner for half of the payments the deceased woman made toward the purchase and upkeep of their shared home, the New York Appellate Division, Second Department has ruled. The deceased woman, Susan, and the defendant, Charles, bought a vacation property in Pennsylvania in 1992 where they subsequently lived together. Susan paid a total of $226,500 toward the property, including the initial payment, mortgage payments, insurance, repairs and utilities. When she died in 2008, she was estranged from Charles.

The Brooklyn, New York Surrogate’s Court appointed Gloria executor of her estate. After the estate made a $7,500 mortgage payment toward the shared property, Gloria sued Charles in Brooklyn Supreme Court. She alleged that Charles had paid nothing toward the purchase or upkeep of the shared property, or, if he had, it was not equal to what Susan had paid. She sought to recover half of what Susan had paid on behalf of the estate plus the $7,500 mortgage payment.

Charles moved to dismiss, saying that, because he and Susan had never sought to partition the property, he had inherited full ownership of it after her death. Therefore, the estate had no claim to recover any share of her payments toward it. In opposing the motion, Gloria argued that §1201 of the New York Real Property Actions and Proceedings Law (RPAPL), which governs legal actions between joint tenants, allows a joint tenant or the executor of a deceased joint tenant’s estate to recover a just portion of money paid toward the upkeep of a joint property. She also argued that if the estate were not allowed to recover, Charles would be unjustly enriched by inheriting a property to which he did not equally contribute.

A joint tenancy is held by two or more persons jointly who have equal rights to share in its enjoyment during their lives and where each joint owner has a right of survivorship — that is, a right of each owner to inherit the entire estate if the other died. Accordingly, the court ruled that Susan, while she was alive, was the only person who could have affirmatively sought a partition of the property and an equitable adjustment of the interests that she and Charles held in the property. She never attempted to sever her joint tenancy with Charles. When she died, he automatically inherited the property as the surviving joint tenant.

The court noted that during her lifetime, Susan was free to manage her finances and spend her money as she saw fit, even if, with the benefit of hindsight, her decision to purchase the property and hold title with Charles, as a joint tenant, and to continue to pay its ongoing expenses after he moved to another address, inured to his financial benefit. There is no authority by which RPAPL 1201 has been applied in a retroactive fashion to allow a decedent’s estate to reach back in time and undo the financial acts of a decedent with regard to the acquisition and management of real property which the decedent, during his or her lifetime, held jointly with another.

However, the court held that the estate had a viable claim to the $7,500 because it is against equity and good conscience to permit Charles to retain the value of those payments. By the time these payments were made, ownership of the property had already passed to Charles “by operation of law.”

For further information, see “Executor’s Legal Survival Guide” at click here.

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As a New Yorker, age 60 or older, you may be missing out on dollar benefits and community services. In the free New York State Bar Association pamphlet, 17 Benefits for Older New Yorkers, you’ll find important facts: how finances and age affect eligibility and little-known rules regarding eligibility. Each county in New York State, outside of New York City, has an Office for Aging. If you are unable to contact your local Office for Aging, you should contact the State Office for Aging at (800) 342-9871.This pamphlet explains seventeen major benefit programs:

1. Social Security
2. Medicare
3. Medicare Buy-In
4. Medicaid
5. SSI (Supplemental Security Income)
6. Temporary Assistance
7. Veterans Benefits
8. EPIC Pharmaceutical Insurance Coverage
9. Food Stamps
10. Home Energy Assistance Program (HEAP)
11. Weatherization Referral and Packaging Program (WRAP)
12. Senior Citizen Rent Increase (SCRIE)
13. Senior Citizen Homeowners Exemption (SCHE)
14. Real Property Tax Credit
15. Reduced Fare
16. New York State School Tax Relief Program (STAR)
17. Life Line Telephone Service,

In addition, there is brief discussion of non-cash programs which benefit seniors.

The pamphlet is available free under “Free Resources” on this site.

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