Legal Question in Wills and Trusts in New York

Gift, Loan, or Advance?

My mother died intestate leaving my sister and myself as heirs.

My mother helped pay my mortgage because I am disabled. Then my sister (not disabled) got Mom to buy her a house, a car, pay all her bills, start her business (which failed), and so on.

As my mother was dying, she apologized that my sister had taken everything so there was nothing left for me. Mom died with no liquid assetts, just the remaining real estate. Now my sister wants half that, too (actually, much more if she can get it).

Since I am unable to earn substantial income, if she gets half the estate, then I will lose my home, whereas my sister will be on easy street in a nice new home.

Is there any way to call what we received before my mother's death a loan or an advance of any inheritance? I received about $60,000 (mortgage payments) while my sister received upwards of a quarter million. It's not like she needed it more, it was just that she extorted it by threatening that she and her daughter would end up homeless if Mom didn't pay. It was never clear what the money was considered to be at the time. Are there any similar cases where it was successfully argued that the money was not a simple gift?


Asked on 8/27/08, 1:10 pm

1 Answer from Attorneys
Michael Markowitz Michael A. Markowitz, PC

Re: Gift, Loan, or Advance?

Very hard to prove. You may start by reviewing documentation between you mother and sister. Does any documentation indicate a loan or advance.

If there are no documents then you would be out of luck. There is an evidentiary law in NY called the Dead Man's Statute. Basically, this means that a person who has a monetary interest in an estate cannot testify about what the decedent stated concerning the estate.

Mike.

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Answered on 8/28/08, 8:34 am


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