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muslim-weddingProf. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.

He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.

He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void  if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.

The Surrogate held that the validity of the marriage in question is governed by New York law,  and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.

I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.

Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.

Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize  the “public acts, records, and judicial rulings” of other states. 

Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.

The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding  would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)

Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.

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father-divineThe latest in a series of law review articles has been released that relate to the tort of “Tortious Interference With Expectation of Inheritance.”  In those states that recognize this tort, it gives someone the right to sue a decedent’s beneficiary or distributee for money that is allegedly wrongly received in an inheritance when the following elements proved by preponderance of the evidence (i.e., 50.1% proof for each element):

  1. the existence of the expectancy;
  2. that the defendant intentionally interfered with the expectancy;
  3. that the interference involved tortious conduct such as fraud, duress, or undue influence;
  4. that there was a reasonable certainty that the plaintiff would have received the expectancy but for the defendant’s interference; and
  5. damages.

Irene D. Johnson,  Tortious Interference With Expectation of Inheritance or Gift – Suggestions for Resort to the Tort, 39 U. Tol. L. Rev. 769, 771 (2008) (citing Sonja Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229, § 2 (1983)).

In New York, however, this tort is not recognized. But aggrieved beneficiaries may resort to the remedy of “imposition of a constructive trust” in many, although not all, situations in which that person would have sued for tortious interference with expectation of an inheritance in other states, and with similar benefits. Diane J. Klein, A Dissappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious Interference With Expectation of Inheritance – A Survey With Analysis of State Approaches in the First, Second, and Third Circuits, 66 U. Pitt. L. Rev. 235, 282-86 (2004).

The leading case for the imposition of constructive trusts in New York surrogate’s court, as a remedy for the same kinds of fraudulent actions that the tort of interference with expectancy of inheritance is meant to address, is the New York Court of Appeals decision in Latham v. Father Divine from 1949.

In that case, Lucy Latham bequeathed Father Divine, a charismatic preacher, and several of his associates, the bulk of her assets in her Will. Several cousins of the deceased testatrix brought significant evidence that Ms. Latham intended to draft a new Will for their benefit, but that associates of Father Divine physically stopped her from executing it and the cousins allege that the preacher’s associates ultimately killed her to prevent her from executing another Will. After a settlement in Surrogate’s Court, these cousins sued Father Divine and his associates in order to have the court impose a constructive trust on the assets Father Divine received.  This would effectively force him to turn over the money and property that he received to the plaintiffs.

The Court, in that case, explained  (page 30) that:

The answer is in Ahrens v. Jones (169 N. Y. 555, 561[]): “‘The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing, but it acts upon the gift itself as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them.'” (emphasis added)

As noted by Prof. Johnson (supra at 239), constructive trusts may not have all of the advantages of the tort remedy. For instance, an aggrieved expected beneficiary cannot use this remedy against an innocent third party to whom estate property was sold after receipt of the assets by the fraudmeister. Also, a constructive trust will not allow a plaintiff to get actual damages, compensatory damages, punitive damages, or a jury trial. 

But for those of us in New York, the constructive trust is all we’ve got!  As readers of this blog know, our office has a very busy estate litigation practice so if you think that you, or someone you know, has been cheated out of an inheritance by some wrongdoing by another, you can call us to discuss your case.

Picture of Father Divine courtesy of tailorstreetstudio.

semen-storageThe New York Law Blog reported on the recent case of  Speranza v Repro Lab Inc., which was decided  by the Appellate Division, First Department, on March 3rd.

In this case, a man, Mark Speranza, deposited several semen samples with Repro Lab in advance of a medical treatment that he had reason to suspect might affect his ability to have children. In his contract with the lab, he directed that in the event of his death, the samples should be destroyed. Unfortunately, he passed away and his parents became the administrators of the estate. They paid the lab’s storage fees and sued to have the Court order the Lab  to release the sperm to them so that they could implant it into a surrogate mother and have a grandchild.

The Court found that such a result would violate NY health law, which mandates extensive testing for sperm that will be implanted in someone other than the regular partner of the sperm donor. Also, the Court found that Mark’s contract with the lab was very clear and that the lab was bound to honor that contract by destroying the sperm.

I am certainly very sympathetic to the parents’ position. Most of us cannot imagine that grief felt by parents who have lost a child. One can also imagine that the parents would want to see some continuity of their child’s life through a grandchild. But such a thing is nevertheless unhealthy on so many levels.

First, as a matter of public policy, it is wrong to make someone into a parent against their express will and without their consent, as  Mark’s parents understandably wished to do.

Second, the result Mark’s parents were suing for violates Mark’s freedom of contract. The fact that his parents had an extremely strong desire for a result different from what their son desired does not give them the right to vitiate the terms of Mark’s contract with Repro Lab.

New York Legal Update commented that it was “sleazy” of the lab to accept the storage fees from the parents while they litigated the matter with them.  They argue that they should have just destroyed the sperm right away upon Mark’s death, as per the contract. I disagree for two reasons.

One, the lab had no way of knowing that Mark’s parents would not be successful in obtaining a court order that Repro turn over the sperm. Once they destroy the sperm it is too late to go back. The lab could have been more concerned about covering its own behind in case the parents won, than about quickly fulfilling their part of the contract with Mark. Thus, I think they could have seen discretion as the better part of valor and decided to sit tight with the sample in storage until the courts settled on an answer to the question.

Second, I doubt that they were cynically pocketing the storage money for profit. Repro was a named party in the law suit and I have no doubt that their legal fees in this matter far exceeded any storage fees they received from Mark’s parents. Thus, the lab probably suffered a major loss, despite receiving the storage fees. So I see the lab’s behavior more as a way of trying to avoid liability than some kind of money-grabbing scheme.

Picture courtesy of selectbreeders.com