BROOKLYN, NEW YORK — On June 27, 2018, Acting Kings County Surrogate John G. Ingram rendered a decision after a 37-day bench trial finding that the Co-Executors of the Estate of Irving Berk (“Decedent”) met their burden of proving that Decedent’s surviving spouse forfeited her right to an elective share of his estate. For eleven years, the Co-Executors were represented in this hard-fought litigation by John G. Farinacci, a partner of Ruskin Moscou Faltischek, P.C. and Jessica M. Baquet, a partner of Jaspan Schlesinger LLP.
Hua Wang a/k/a Judy Wang (“Wang”) immigrated to the United States in 1996. She was hired as Decedent’s live-in caretaker in 1997 when decedent was 91 years old. From that time until his death at age 100 in June 2006, Decedent grew increasingly infirm, mentally incapacitated and dependent on Wang. Wang and Decedent were married in a civil ceremony on June 17, 2005, witnessed only by a hired Mandarin translator. The fact of the marriage was concealed from Decedent’s family, friends, professionals and medical providers until after his death, when Wang revealed it to the Co-Executors, who are Decedent’s sons, in a car on the way to the funeral home.
In 2006, Wang filed a petition to determine her right to an elective share of the Decedent’s estate. The Co-Executors answered and asserted that Wang should be equitably estopped from exercising her right of election because she unduly influenced the Decedent to marry her and he was incapable of consenting to the marriage. Wang moved for summary judgment, asserting that the applicable statute only permits forfeiture of the elective share in limited circumstances, none of which existed in this case. The Surrogate’s Court granted her motion in 2008.
In 2010, the Appellate Division, Second Department reversed in Matter of Berk, 71 A.D.3d 883 (2d Dep’t 2010) based upon arguments by Mr. Farinacci and Ms. Baquet. There and in a companion case, Campbell v. Thomas, 73 A.D.3d 103 (2d Dep’t 2010), the Court held for the first time that, despite the narrow grounds for disqualification provided by statute, a spouse forfeits her elective share as a matter of equity if she “knowing that a mentally incapacitated person is incapable of consenting to a marriage, deliberately takes unfair advantage of the incapacity by marrying that person for the purpose of obtaining pecuniary benefits that become available by virtue of being that person’s spouse, at the expense of that person’s intended beneficiaries.” These were landmark decisions about the need for Courts to address the ever-increasing problem of elder exploitation.
On a subsequent appeal in 2015, again based on arguments by Ms. Baquet and Mr. Farinacci, the Appellate Division elaborated that “an alternative ground for forfeiture of the right of election is whether the petitioner, as the decedent’s caretaker, exercised undue influence upon the decedent to induce him to marry her for the purpose of obtaining pecuniary benefits that become available by virtue of being that person’s spouse, at the expense of the intended beneficiaries.” Matter of Berk, 133 A.D.3d 850 (2d Dep’t 2015).
The trial concerned whether Wang forfeited her right to an elective share under either of the tests established by the Appellate Division on the prior appeals. The Surrogate’s Court heard testimony from more than thirty witnesses over three months. Judge Ingram concluded that the Co-Executors adduced “crystal clear” evidence that Wang acted with nefarious intent, and that the Decedent lacked capacity to marry and had been the victim of undue influence. The decision is a victory for the victims of elder abuse and their families throughout the State of New York.
For 50 years, Ruskin Moscou Faltischek P.C., headquartered in Uniondale, has built a reputation as one of the region’s leading providers of innovative legal services. Its attorneys are practical, experienced advocates who measure their success by their clients’ success. Cornerstone groups in all major practice areas of the law are represented at the firm, including corporate and securities, financial services, commercial litigation, intellectual property, health care, real estate, employment, not-for-profit, cybersecurity and data privacy, energy, and trusts and estates. Clients include large and mid-sized corporations, privately held businesses, institutions and individuals.