McCarthy Fingar's Surrogate’s Court Litigation group is frequently retained in controversies and litigation over lifetime transfers of assets by a decedent. Such transfers are often in direct contravention of provisions of a decedent's Will or Trust Agreement. We represent clients on both sides of the issue, sometimes representing a fiduciary seeking to collect assets in an estate or trust that were allegedly a voluntary lifetime gift. Sometimes, we represent a recipient of such gifts.

The rhetorical question: when is a gift not a gift? A gift is invalid and can be set aside when the decedent either lacked the capacity to make a gift or the gift by the decedent was the product of someone's undue influence or fraudulent conduct. Another example of an invalid gift is when property is transferred through a power of attorney document, and the agent under the power of attorney document either lacked authority to make a gift or the transfer was not in the decedent's best interest.

• Lack of Capacity/Undue Influence/Fraudulent Conduct: In Will and Trust Contests, the critical issues often are whether a decedent had capacity to make a Will or Trust Agreement or whether that the Will or Trust Agreement was a product of someone's undue influence or fraudulent conduct. Many of these same issues exist in court proceedings seeking to set aside lifetime property transfers.

• Power of Attorney Transfers: Acting under powers of attorneys, family members are able to lovingly and diligently manage an infirm family member's finances and pay bills and expenses. Sometimes, however, power of attorney documents are used to make gift transfers, and sometimes those gift transfers are made after the decedent is incapable of making important decisions. Such transfers are often the subject matter of litigation in the Surrogate's Court.

• Procedural Remedies: Litigation options on setting aside property transfers, after a decedent's death, are complex and require a lawyer's careful evaluation of many different procedural considerations. When McCarthy Fingar represents fiduciaries, our lawyers will often recommend bringing on a turnover proceeding in the Surrogate's Court to seek to recover assets in an estate. On the other hand, an executor of an estate may have been a lifetime recipient of an alleged gift, and a beneficiary under a Will would need to move forward with a contested accounting to challenge the validity of the alleged gift in an executor's final accounting or at an earlier time in the administration of an estate.

Whether we are seeking to validate or set aside a lifetime transfer, the lawyers in our Surrogate’s Court Litigation group will bring their many years of experience to develop a strategy on how the case should go forward. Often, when representing fiduciaries, we recommend that, before we seek a court determination to set aside a gift transfer, we undertake a court-authorized inquiry of the individual who allegedly has property belonging to the estate. Then, following that examination, our lawyers make recommendations to a client on how to proceed.