Page 17 - The Suffolk Lawyer - March 2021 - Vol. 36, No. 2
P. 17

Trusts and Estates Update

                                                                      By Ilene Sherwyn Cooper

            Constructive Trust                               on him in other respects or that she was sus- living expenses, and did not require the as-
               In In re Tong, the Surrogate’s Court, New ceptible to his control. Indeed, the testimony sets of the subject brokerage account to do
            York County addressed whether a construc-        indicated that the decedent had a laptop so. Accordingly, in view of the foregoing, the
            tive trust should be imposed on the assets which she used frequently to trading stocks, court denied the relief requested in the peti-
            held in a brokerage account. The discovery and that she was capable of living on her tion.
            proceeding before the court was com-             own.                                               In re Tong, NYLJ, Oct. 19, 2020, at 22
            menced by one of the decedent’s two sons,           The court observed that a construc-          (Sur. Ct. New York County).
            the limited administrator of the estate,         tive trust is comprised of four ele-
            against his brother. Notably, in an earlier de-  ments: a confidential relationship, a           Eviction
            cision, the court dismissed a portion of the     promise, which may be implied, a                   In a contested accounting proceeding be-
            petition, without prejudice, which sought the    transfer made in reliance on that               fore the Surrogate’s Court, Bronx County, in
            recovery of an IRA for lack of subject matter    promise, and unjust enrichment.                 In re Jenkins, the petitioner requested leave,
            jurisdiction.                                      On the issue of reliance on a promise, the pursuant to SCPA 1902, to sell the dece-
               The court observed that a constructive        court noted that the petitioner needed to       dent’s interest in a parcel of realty, and to
            trust is comprised of four elements: a confi-    show, at a minimum, that the respondent ei- eject decedent’s grandson from the property.
            dential relationship, a promise, which may ther promised or had an implicit agreement The application was supported by the two of
            be implied, a transfer made in reliance on or understanding with his mother that she             the decedent’s granddaughters. However, it
            that promise, and unjust enrichment. On the would retain control of her investment ac- was opposed by the decedent’s grandson,
            issue of confidential relationship, the court count after the account transfer, or would         who stated that he wished to buy the realty,
            noted that a mother-son relationship does have access to the funds, and that such ac- but for a price less than the contract price.
            not constitute a confidential relationship in    cess would devolve upon her estate.  How- The court noted that courts have liberally
            and of itself, nor does one party’s depend- ever, the court concluded that unlike the granted SCPA 1902 (1), (6) and (7) applica-
            ence on another because of physical limita- circumstances in Sharp v Kosmalski , where tions to sell realty over the objections of
            tions. To this extent, the court found that the court implied a promise based on the some of the co-tenants in common who de-
            while the decedent depended on the respon-       plaintiff’s continued need of the transferred rived their interest in the realty from the
            dent for purchasing her food and medica- asset to sustain herself, the decedent had              decedent, provided that there is a sufficient
            tions, and for other household chores, it was    ample funds and resources, principally nexus between the relief requested and the
            insufficient to establish that she depended through the assets of the IRA, to satisfy her                             (Continued on page 27)

            MARCH 2021 EDITION • The Official Publication of the Suffolk County Bar Association • THE SUFFOLK LAWYER  17
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