A deed signed a year before death, a child added to a bank account, a beneficiary changed on a life insurance policy: each is a lawful lifetime transfer, and each can be attacked after the owner dies. The challenger is usually a disappointed heir or the executor, and the theories are undue influence, lack of capacity, fraud, forgery or breach of a confidential relationship. We represent the people on the other side of those claims, the children, spouses, caregivers, friends, charities and trustees who received a lifetime transfer and are now defending it in the Surrogate’s Court or the Supreme Court. This page describes how those challenges are made and how they are met.
What counts as a pre-death transfer
An inter vivos transfer is any transaction completed during life that moves ownership to someone else. People make them to avoid probate, to qualify for Medicaid, to provide for a family member or to reward a caregiver. The usual forms are a deed of a house, co-op shares or a condominium; a joint bank or brokerage account with a right of survivorship; a Totten trust or payable-on-death account; a beneficiary designation on a retirement account, life insurance policy or securities; an outright gift of cash, jewelry, art or other personal property; a contribution to an irrevocable trust for estate or Medicaid planning; and a life estate deed that keeps a life interest and conveys the remainder. All of these are recognized in New York. All of them become litigation when the rest of the family believes it was cut out.
The grounds on which transfers are challenged
The defense depends on the theory of attack, so it helps to know the six that New York challengers rely on.
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Lack of capacity
The challenger argues that the decedent did not understand the transfer when it was made. For a gift or deed, New York requires that the grantor understood the nature of the transaction, the property involved and the natural objects of their bounty. The fight is over medical records, any dementia diagnosis and the testimony of the people who were there.
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Undue influence
This is the most common challenge. The challenger must ordinarily prove motive, opportunity and the actual exercise of influence that overcame the decedent’s free will. Courts look hardest at transfers to caregivers, new romantic partners, recent acquaintances and family members who kept the decedent away from others.
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Confidential relationship and the shifted burden
When the recipient stood in a confidential or fiduciary relationship with the decedent and received a substantial benefit, the court may shift the burden to the recipient to prove that the transfer was fair and free of undue influence. This is the doctrine of cases such as Gordon v. Bialystoker Center & Bikur Cholim, 45 N.Y.2d 692 (1978), and it is the reason recipients in these positions need counsel early.
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Fraud, forgery, and missing gift elements
A challenger may claim that the decedent was tricked into signing by false statements, or that the signature on the deed, account card or beneficiary form is not the decedent’s at all. Forgery claims are met with handwriting experts, notary records and witness testimony. Finally, a valid gift in New York requires donative intent, delivery and acceptance, and a challenger may argue that one of the three was missing.
Where the case is heard
Most of these disputes are in the Surrogate’s Court of the county where the estate is being administered: New York, Bronx, Kings, Queens or Richmond in the city. The executor or administrator usually proceeds under SCPA 2103, which lets a fiduciary examine a person believed to hold estate property and, if the person claims ownership, try the question of title before the Surrogate. Actions to set aside a deed, impose a constructive trust or recover for conversion or fraud may instead be brought in the Supreme Court of the county where the property is located. Where the parties are from different states and enough is at stake, diversity jurisdiction can bring the dispute into federal court. Whichever the forum, the case is fact-intensive and the recipient should expect to be examined under oath.
How we defend the transfer
The defense is built from evidence, most of it gathered before the first court date.
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Capacity and intent
We collect medical records, physician notes, pharmacy records and testimony from treating doctors to show the decedent had capacity when the transfer was made, and we collect the decedent’s own words, letters, emails, text messages, recorded conversations and statements to third parties, to show that the transfer was what they wanted.
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Independence
We show that the decedent acted on their own, consulted their own lawyer or adviser, kept up relationships with other people and made a decision consistent with long-held views. A transfer discussed openly over time is very different from one executed in secret or under pressure, and the record usually shows which it was.
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Rebutting the presumption
Where a confidential relationship shifts the burden, we meet it by showing that the decedent had independent legal advice, understood the consequences and had every opportunity to change course.
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Signatures, delivery and acceptance
Against a forgery claim we retain a handwriting expert, review the notary’s journal and identification records and call the witnesses who were present at the signing. For a contested gift we document physical or constructive delivery and the recipient’s acceptance through the recorded deed, the account records and related evidence.
What is at stake
New York City real estate routinely puts millions of dollars in issue. If a brownstone, co-op, condominium or multi-family building is pulled back into the estate, it passes under the will or the intestacy statute instead of to the recipient. The recipient who loses may also have to return rental income, dividends or interest received since the transfer, reimburse expenses the estate paid, pay attorneys’ fees in some circumstances, bear a surcharge for breach of fiduciary duty where a confidential relationship existed, and absorb the tax consequences of an unwound transfer.
New York rules that shape these cases
The Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act govern most of the dispute, but several other bodies of New York law come into play. The Real Property Law sets the requirements for a valid deed, including acknowledgment and recording. The Banking Law governs joint accounts and Totten trusts, and Banking Law § 675 supplies a statutory presumption in favor of the surviving joint owner. A co-op transfer is an assignment of shares and a proprietary lease and usually needs board approval. A transfer made inside the Medicaid look-back period can be reached by the Department of Social Services. And under EPTL 5-1.1-A a surviving spouse may be able to claim an elective share against certain lifetime transfers, which we explain on our right of election page.
Who we represent
Our clients in these cases are adult children who received a deed, an account or a gift from a parent; caregivers accused of influencing a vulnerable elder; surviving spouses and domestic partners whose transfers are challenged by stepchildren; friends and companions from late in the decedent’s life; siblings and other relatives named as joint owners or beneficiaries; charities that received substantial lifetime gifts; and trustees defending an irrevocable trust against a claim that it was improperly funded.
Why to call early
If a transfer you received is being questioned, or you expect a challenge once a relative dies, the time to act is before the petition is filed. Evidence has to be preserved and witnesses found while memories are fresh, and procedural deadlines run whether or not you are ready. Early involvement also opens the door to a negotiated settlement, family mediation or a structured agreement that avoids the cost and publicity of a trial.
If you are facing a challenge to a deed, joint account, beneficiary designation, gift or other lifetime transfer, call us at 212-233-1233 or email [email protected]. We will review the facts, explain your options and help you protect what you were given.
