Alexander Hamilton, Trusts and Estates Attorney, Part 3

“What are the rights of the individuals composing a society and living under the protection of the government when a revolution occurs, a dismemberment takes place, and when new governments are formed and new relations between the government and the people are established?”  This was the pressing question asked by the U.S. Supreme Court in 1830 as it considered a case arising from the Last Will and Testament of Robert Randall containing testamentary trust for the establishment of Sailor’s Snug Harbor that Alexander Hamilton had drafted.

New York has always been known as the city of immigrants.  It was so when Alexander Hamilton arrived in New York, then known as the Province of New York and a British proprietary colony. Alexander Hamilton’s role in the Revolutionary War and in the founding of the United States is now well-known.  Less well-known is the complex history of New York from the time of the Declaration of Independence until the British retaking of the city in September of 1776, and the occupation of New York by the British until the retaking of the city by George Washington’s Continental Army on November 25, 1783.  During those tumultuous times, loyalists and revolutionaries considered themselves citizens of New York.  But who was a citizen and who was an alien?  Who had the right to inherit property?

Revolution in New York had begun before the Declaration of Independence.  On May 22, 1775, a group of local revolutionary representatives calling themselves the New York Provincial Congress had declared themselves the government of New York.  But New York was also home to Loyalists, colonists born in New York who remained loyal to the British Crown.  New York was the only colony not to vote for independence on July 4, 1776 and only endorsed the Declaration of Independence five days later.  About a third of the population of New York considered themselves Loyalists.  One of them was Bishop Charles Inglis.  From 1773 until the British defeat in 1783, Charles Inglis had been the rector of Trinity Church.  He resigned his post in 1783 and, like many Loyalists, emigrated to Nova Scotia where in 1788 he founded King’s College in Windsor, Nova Scotia.  Charles Inglis never returned to New York.  He had a son, John Inglis, who was born in New York in 1776 but who emigrated to Nova Scotia with his father.  John Inglis was ordained deacon by his father in 1801 and  became Rector of St, Paul’s in Halifax, Nova Scotia in 1816.  In 1826, John Inglis became the third Bishop of Nova Scotia.  Thereafter, he began a legal challenge to reclaim his rights to Robert Randall’s estate.

In the record of the U.S. Supreme Court case of Inglis v. Trustees of Sailor’s Snug Harbor (28 U.S. 99 (1830)),  John Inglis stated an uncontroverted claim to be related to Robert Richard Randall through Margaret Inglis, his mother, who was a descendant of John Crooke, the common ancestor of Robert Richard Randall, Catherine Brewerton, and Paul R. Randall.  But was kinship sufficient to claim an inheritance under Randall’s Will?  John Inglis had been born in New York before the Declaration of Independence, and he had lived in New York prior to the British re-occupation in September 1776.  As a child, he had emigrated with his father to Nova Scotia, his mother having died while the family lived in New York.  Did his birth on New York soil alone establish his right to inherit under Robert Randall’s Will and nullify the Sailor’s Snug Harbor Trust?

In his opinion, Justice William Johnson, who had been appointed to the Court by Thomas Jefferson, held that “(A) person born in New York before 4 July, 1776, and who remained an infant with his father in the City of New York during the period it was occupied by the British troops, his father being a loyalist and having adhered to the British government and left New York with the British troops, taking his son with him, who never returned to the United States, but afterwards became a bishop of the Episcopal Church in Nova Scotia; such a person was born a British subject, and continued an alien, and is disabled from taking land by inheritance in the State of New York.” This property and inheritance holding would be used to control both immigration and property ownership throughout the 19th century in New York.  Currently, New York’s SCPA § 2218 provides a procedure for aliens to inherit money or property located in New York.

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Alexander Hamilton, Trusts and Estates Attorney: Part 2

In June 1801, Hamilton was summoned to the deathbed of Robert Richard Randall who resided in a mansion and farm called Minto.  Minto Farm, located at Broadway between Eighth and Tenth Street in what is now Greenwich Village, sat on 21 acres with a mansion and other buildings.  Hamilton had once owned part of the property in partnership with John Jay and Isaac Roosevelt before selling the parcel to Baron Poellitz in 1787. In 1790 Robert Randall had purchased the farm and mansion formerly owned by the British Andrew Eliot, Collector of the Port, from Anne Stuart, baronne  von Poellnitz, the wife of Frederick Charles Hans Bruno, baron von Poellnitz.  Hamilton had also been involved in the sale and purchase of the property by Randall because he managed the Poellnitz’s affairs in the United States.

Hamilton was counsel to Randall’s sister Catharine Brewerton, and it is likely through that relation that he was asked by Robert to draft his Will.   In addition, Randall knew that Hamilton shared his philanthropic vision for the support of aging sailors.   George Washington, Hamilton, and Randall were all members of the very prestigious Marine Society.  Hamilton, John Marshall (who would become Chief Justice of the U.S. Supreme Court and who would play a part later in this story), and Leonard Lispenard (a wealthy merchant and large landowner of what is now TriBeCa, and commemorated by street names for both his first and last names) all served as presidents of the Marine Society that had been founded by Robert’s father, Captain Thomas Randall.

Captain Thomas Randall had made his fortune as a privateer (or buccaneer), a private person authorized by a government to attack and plunder enemy ships during wartime.  Thomas Randall had been a part owner of “La Jeune Babe” from 1773-1776 with Stephen Girard, who personally saved the U.S. Government from financial collapse during the War of 1812 and one of the wealthiest people at the time. Thomas Randall died in 1797 after a long maritime, governmental (he was Vice-Consul to China), and philanthropic career.  He had been the founder of the Marine Society in New York for the relief of sailors and their families.  Upon his death, his fortune was distributed in large part to his three children:  Paul R. Randall, Catharine Brewerton, and Robert Richard Randall.

It came as no surprise to Hamilton then that Robert Randall chose to leave his fortune in trust for the purpose of maintaining and supporting aging sailors.  But what Hamilton did next was pure genius:  he drafted a perpetual testamentary charitable trust that would be made viable by an act of the state legislature, thereby creating a road map for the legislature to transfer property for charitable purposes without the use of confiscation or eminent domain.  In addition, this Will provision established the private right of an individual to transfer property to a charitable corporation.  The charity would be created for the benevolent purpose of supporting fifty or more aging sailors from the proceeds of the rents from the residuary estate.   Here is the genius clause in its entirety:

“Sixthly.  As to and concerning all the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath the same unto the Chancellor of the State of New- York, the Mayor and Recorder of the city of New- York, the President of the Chamber of Commerce in the city of New- York, the President and Vice President of the Marine Society of the city of New-York, the senior Minister of the Episcopal Church in the said city, and the senior Minister of the Presbyterian Church in the said city ; to have and to hold, all and singular the said rest, residue, and remainder of my said real and personal estate, unto them, the said Chancellor of the State of New- York, Mayor of the city of New- York, the Recorder of the city of New-York, the President of the Chamber of Commerce, President and Vice President of the Marine Society, senior Minister of the Episcopal Church, and senior Minister of the Presbyterian Church in the said city, for the time being, and their respective successors in the said offices, forever, to, for, and upon the uses, trusts, intents, and purposes, and subject to the direction and appointments hereinafter mentioned, and declared concerning the same ; that is to say, out of the rents, issues and profits of the said rest, residue, and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an Asylum, or Marine Hospital, to be called ” The Sailors’ Snug Harbor,” for the purpose of maintaining and supporting aged, decrepit, and worn-out sailors, as soon as they, my said charity Trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards. And I do hereby direct, that the income of the said real and personal estate, given as aforesaid to my said charity Trustees, shall forever hereafter be used and applied for supporting the Asylum or Marine Hospital hereby directed to be built, and for maintaining sailors of the above description therein, in such manner as the said Trustees, or a majority of them, may, from time to time, or their successors in office may, from time to time, direct. And it is my intention, that the institution hereby directed and created, should be perpetual, and that the above mentioned officers for the time being, and their successors, should forever continue and be the governors thereof, and have the superintendence of the same : and it is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the Legislature, it is my will and desire that they will, as soon as possible, apply for an act of the Legislature to incorporate them for the purposes above specified. And I do further declare it to be (my) will and intention, that the said rest, residue, and remainder of my real and personal estate should be, at all events, applied for the uses and purposes above set forth ; and that it is my desire, all courts of law and equity will so construe this, my said Will, as to have the said estate appropriated to the above uses, and that the same should, in no case, for want of legal form or otherwise, be so construed, as that my relations, or any other persons, should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified. And, lastly, I do nominate and appoint the Chancellor of the State of New- York for the time being, at the time of my decease, the Mayor of the city of New York for the time being, the Recorder of the city of New- York for the time being, the President of the Chamber of Commerce for the time being, the President and Vice President of the Marine Society of the city of New-York for the time being, the senior Minister of the Episcopal Church in the city of New- York, and the senior Minister of the Presbyterian Church in the said city, for the time being, and their successors in office after them, to be the executors of this my last Will and Testament.”

Within five years after the death of Robert Randall, the New York legislature, on the application of the trustees who were also the executors of the Will, passed a law that constituted the persons holding the offices named in the Will and their successors as a corporation by the name of “The Trustees of the Sailor’s Snug Harbor” so that they could execute the trust in the Will.

Of course, this novel clause would not go without legal challenge, one that would reach the U.S. Supreme Court in the case of Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99 (1830).  That case and its aftermath will be the subject of Part Three of this story.  Stay tuned!

#AlexanderHamilton #Hamilton #SailorsSnugHarbor

A Thanksgiving Checklist as We Count Our Blessings…

More than any other holiday, Thanksgiving is the time when we gather around the table to celebrate with family and friends.  Many of you are traveling to visit your family, and many of you are receiving family and friends for Thanksgiving.  Soon there will be the familiar and anticipated aromas coming from the kitchen and we will gather around the table to enjoy a fabulous meal prepared by loving hands and give thanks for all of our blessings.

This is also the time of year that I suggest for an annual review of your legal life plan because the people you love and want to protect are right there with you.  So this weekend, as you savor the leftovers, ask yourself the following questions.

  • Do I need a Will?
  • If I have a Will, has anything major occured in my life this past year so that I should review it with an attorney?
  • Do I need to look into setting up a trust?
  • Have I reviewed all of my beneficiary designations on such things as life insurance policies and retirement plans?
  • Do I need a living Will?
  • Do I need a Power of Attorney for financial matters?
  • Do I need a Power of Attorney for health care?
  • Do I need a prenuptial agreement?
  • Do I need a postnuptial agreement?
  • Do I need a domestic partnership agreement?

If you would like to discuss your own personal situation with me, review your current legal life plan, or put together a legal life plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

From my home to yours, I wish you a very Happy Thanksgiving!  May you and your family continue to be blessed.

Mental Capacity and Marriage in New York, Part 3: The Secret Marriage

Marriage fraud has always had as a consequence the disruption of family estate planning, or even the potential of an unfair result where the state’s intestate laws are applied when the decedent dies without a Will.  But if the bride or groom suffers from dementia and their fiance(e) has been in a caregiver position, the resulting marriage could be considered a form of elder abuse because the person suffering from dementia is being exploited for financial reasons.

Consider the case in Matter of Berk, 2010 NY Slip Op 02139 [2d Dept 2010]).  Irving Berk was a very successful businessman, having founded the Berk Trade and Business School.  In 1982, he executed a Will naming his sons Joel and Harvey as co-executors.  Over the next few years, Irving’s memory began to fail.  His physical health also deteriorated, and he became wheelchair bound.    In 1997 his sons decided to hire a live-in caregiver. At the time, Irving Berk was 91 years old.  His caregiver, a recent immigrant from China named Hua Wang (also known as Judy Wang), was 40 years old.

Friends of Irving reported that Wang took advantage of Berk’s increasing dependency on her, and that she physically and verbally abused him.  By 2005 Irving Berk could no longer recognize his sons who by then were contemplating guardianship proceedings.   As part of this process, Irving was examined in April 2007 by a physician who diagnosed him as having dementia and stated that Berk did not possess the mental capacity to enter into contracts.  His family physician who examined him a short time later found that Irving did not have the mental capacity to handle his social affairs.

Nevertheless, on 17 June 2005 Irving Berk and Judy Wang were married in the civil ceremony in the New York City Clerk’s Office.   The marriage was kept a secret.  Neither Berk nor Wang wore wedding bands thereafter, nor did family and friends ever witness displays of affection between them.

On 16 June 2006, Irving Berk died leaving an estate worth more than $5 million.  The day before the funeral, Wang informed his sons of the secret marriage as they drove to the funeral home.  When the Will was read, it was discovered that Irving Berk had never changed his Will to make his new wife a beneficiary.  The named beneficiaries remained his two sons and four grandchildren.  Because Irving had made no provision for his new wife in the Will, Judy was now entitled to ask for the elective share.

On 29 December 2006, after the Will was filed for probate and within the requisite six months after the Will was probated, Judy Wang Berk petitioned the Surrogate’s Court in King’s County for a determination of her right to take her elective share as Irving’s surviving spouse.  Under New York law, the surviving spouse is entitled to $50,000 or one-third of the decedent spouse’s estate, whichever is greater.   The Surrogate found that Judy was married to the decedent at the time of his death and that, as a matter of law, she was entitled to her elective share under EPTL 5-1.1-A [a].

Berk’s sons appealed.  The Appellate Division, Second Department found that Judy Wang had married Irving Berk in the full knowledge that he lacked the mental capacity to consent to a marriage.   Under the principles of equity, the court found that Wang should thus not be unjustly enriched because she took unfair advantage of Berk’s mental incapacity at the time of their marriage.

Over 5 million people are affected by Alzheimer’s disease and other forms of dementia, and this number is expected to grow.  The time is now to protect your assets and your loved ones.  You cannot afford to wait for a diagnosis because once you have been diagnosed with dementia, your diminished mental capacity will prevent you from taking the necessary legal steps to protect yourself, your property, and your family.

What can you do to protect yourself?  Irving Berk had a Will, after all.  A Will is certainly a good first step, but it is not enough.  Unless the Will has been carefully drafted by an attorney to make sure that it is in compliance with New York Law and contains the necessary language about the elective share so as to mitigate against unscrupulous persons, then the door is left open for a sham marriage or other forms of unjust enrichment to occur.  Do-it-yourself online wills should be used with extreme caution or not at all as a result.

Secondly, you should meet with your attorney at least once a year in the same way that you meet with your doctor for your annual physical exam.  Your attorney will ask you questions to determine what has changed in your personal and legal affairs, and may suggest redoing your Will or adding a codicil based upon your responses.  Your attorney will also evaluate your mental capacity as you answer the questions.  If the attorney determines that there is a doubt about your mental capacity, then your attorney will strongly advise that any codicils or new Will be videotaped during the execution ceremony.  This service is worth its weight in gold.

Next, your attorney may suggest that you place you assets into a trust.  If you go this route, you may want to execute a pour-over Will, meaning that your assets will go directly into the trust at the time of your death, to be administered according to the terms of the trust.  Remember that assets such as bank accounts and property that can be held jointly are vulnerable to sham marriage schemes.  You may want to re-title these in the name of the trust.  Note that trusts are contracts, and that contracts require the highest level of mental capacity in New York.  If you wait too long, you may not have the requisite mental capacity to execute the trust documents.

You will also need full mental capacity to give a durable power of attorney to someone you trust or to your bank so that your affairs can be managed should you lose mental capacity.  Your attorney will discuss these options with you in detail so that you are comfortable with your choices.

Finally, your attorney will review your planning for medical decision-making including having a living Will and a health care proxy.  These are known as advance directives. The case does not disclose whether Irving Berk had these instruments in place.  If he did not, Judy Wang Berk as his legal wife would have been the one to make the decisions about his health care, and not his sons.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Subscribe to” on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

Single Parents and Wills: The Appointment of a Guardian for Your Child

One of the most important decisions that a single parent can make regarding the care of a minor child is the appointment of a testamentary guardian in the event of the parent’s death. The appointment of a testamentary guardian is done in a Will. In essence, a guardianship clause in a Will determines who will get custody of the child upon the parent’s passing.

If you are divorced, then it is very important that you have a Will. While the remaining parent will likely become the guardian of your child, unless that parent has been declared unfit, the Will of the last parent to die will determine the guardianship of any minor child. To illustrate: if a divorced mother with a Will predeceases her divorced husband who later dies without a Will, the mother’s designation of a testamentary guardian will prevail.

How should you choose a testamentary guardian for your minor child? There are several factors to be considered, such as:

  • the health of the guardian;
  • the person’s values;
  • whether the proposed guardian has children already and, if so, whether their ideas on parenting are in agreement with yours;
  • if religious upbringing is important to you, whether the proposed guardian shares your beliefs;
  • whether the proposed guardian shares your educational values;
  • whether the person is willing to comply with all of the court procedures on a yearly basis;

You should consider appointing an alternate guardian who will also meet the same criteria as the designated guardian in case the designated guardian cannot take on the duties in the event of your death. Note that, depending upon the age of the minor child at the time of the parent’s death, any designated guardian or alternate may have to serve for quite a long time. Therefore, a designated guardian should reflect carefully upon the duties involved before making the commitment.

Regardless of the presence of an ex-spouse, a single parent will want to assure the unencumbered transfer and management of non-probate assets for any minor child through a Will. If your minor child is named as a beneficiary of your life insurance policy or retirement plan, then that property will pass outside of probate directly to your child. In your Will, you may want to consider either appointing a separate guardian for your child’s property or establishing a testamentary trust.

If there are multiple children, provision may be made in the testamentary trust to pool the assets in order to afford the trustee discretion in caring for differing needs of the children. This is especially important if there is a special needs child. Without a Will, each child will receive equal shares without any regard to the different care needs of each child.

In the case of a testamentary trust, the parent (grantor) will want to designate a trustee to manage the proceeds of the trust until the child reaches majority. The designated trustee must agree to meet annually with the probate court and show that the trust assets are being dispersed responsibly.

A single person should consult with an attorney to draft a Will that will provide for the proper care of minor children in the event of the parent’s death. The attorney will assess each individual situation and provide guidance as to how best to protect the minor children and their assets.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.