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New York Clergy Privilege (CPLR section 4505)

In law, a privilege — broadly speaking — is the ability to not disclose information that one would ordinarily have to. For example, many people have heard of the Attorney-Client privilege which requires that an attorney not disclose certain information received from their client unless the client authorizes it. The goal of a privilege like the Attorney-Client privilege is to allow the client to speak candidly with their attorney in order to get the best possible advice without having to worry that what they say will be used against them later on in some way. In this post, I’m going to go over a slightly different privilege, namely Clergy Privilege under Section 4505 of New York’s Civil Practice Law and Rules (CPLR). Section 4505 recites the privilege as follows: Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion or duly accredited Christian Science practitioner , shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor. The idea here is that if a person is allowed to speak freely to their minister or other religious adviser about an issue they are conflicted on, the person is more likely to think through the problem, reach a good resolution, and ultimately whatever is morally and ethically right under the circumstances. The Clergy Privilege is not unique to New York. California has it also, except there is it called the “Clergy-Penitent Privilege”. See California Evidence Code sections 1030 to 1034. The major New York case that describes a lot about the Clergy Privilege is from...

California Dying Declarations (CA Evidence Code 1242)

In court, there are a ton of rules about what evidence can be used and what evidence can’t be used. In past posts, I’ve described how only relevant evidence (in California; in New York and under Federal law) can be used in court. What occurred in the real world is often not what is dealt with in court. Many laypeople are shocked to know this when they get involved with their first court case. In California state court, the set of rules that govern what evidence can and can’t be used is the California Evidence Code. In federal court, there are the Federal Rules of Evidence. The specific name varies, but every jurisdiction in the United States generally has its own set of evidence rules. One major component of the evidence rules — regardless of jurisdiction usually — is hearsay. Hearsay is easy to define — I learned it in law school as (1) statement, (2) made by a person, (3) outside of court, and (4) an attempt is being made to admit that evidence for the truth asserted therein. See section 1200 and onward in the California Evidence Code. These criteria are, obviously, fairly basic. As an aside, in the real world, it’s rare that you would quickly be able to tell if these criteria are satisfied. You’d likely have to answer some more nuanced questions first, such as “What exactly is a ‘statement’?” Anyway, aside over. If these 4 basic/simplified criteria are met, then the statement can’t be used in court… unless an exception of some kind applies. As many law students in the US — and...

New York Statute of Frauds

In general, it is a good idea to have agreements and contracts in writing. A writing is generally more clear and less susceptible to jaded recollection than an oral agreement, for instance. In some instances, however, the law requires that an agreement or contract must be in writing in order to be enforceable. This requirement for a writing is called the Statute of Frauds. In California, the Statute of Frauds is in California Civil Code section 1624. In mid-2017, I made a Youtube video in which I went over California’s Statute of Frauds. I have a bunch of other videos on my Youtube channel as well. Most are California-focused because that’s where I practice primarily, but I am trying to add more New York videos. Due to New York Judiciary Law section 470, though, (see below), my New York videos are going to go over statutes and other publicly-available legal resources only. Anyway, take a look around the channel and subscribe. New York has the Statute of Frauds as well. The idea is the same — namely, that certain agreements and contracts must be in writing in order to be enforceable — but as is usually the case, the implementation varies from state-to-state. In other words, New York’s Statute of Frauds requires different agreements be in writing than California’s Statute of Frauds does. New York’s Statute of Frauds is codified in New York General Obligations Law Section 5-701. I’ll go over that section briefly, but I encourage you to take a look at the actual statute section in order to get a complete description of what agreements are covered....

New York Small Estate Affidavit Procedure

Every so often, I get questions in California about how to do a probate for someone who died but left very little or no assets. It got so frequent at one point that I made a video about it for my Youtube channel on the California process. The idea of a summary — or quick — probate process for someone who left little or no assets is not unique to California. This post discusses the Small Estate Affidavit Process for New York. As an initial matter, though, I have to clarify that I do not take cases in New York because — while I have been licensed to practice law there since 2012 — New York also requires under New York Judiciary Law section 470 that lawyers maintain a physical office within the state of New York too. I don’t so I don’t take clients or cases there. I do, however, know plenty of lawyers all throughout New York so if I can make a referral to help you solve your problem or move your case forward, feel free to get in touch. Because I don’t have an office in New York state, I have never done the NY Small Estate Affidavit Process myself so I have no first-hand experience to operate from. All of the below is simply due to my, ahem, excellent legal research skills. Anyway, that said, the applicable law for the New York Small Estate Affidavit Process is New York Surrogate’s Court Procedures Act (NYSCPA) Section 1301 and onward. (That’s Article 13, in case you need an Article). The basic idea for the New York...

California Will Drafting – Disinheriting Your Children

Last time, I posted about how to omit, disinherit, or otherwise leave your spouse out of your will. The rule there was that under California Probate Code Section 21610, you can’t disinherit your spouse by simply not mentioning them in your will. California will assume that such an omission was accidental and give your spouse an intestate share anyway. This time, we’re going to talk about disinheriting your children. The rule is very similar to disinheriting your spouse, except this time, we’re talking about California Probate Code section 21620, simply not mentioning your children in your will is not enough to disinherit them. Unless you can prove one of the section 21621 exceptions apply, California will assume you didn’t mention your child by accident and then give them a share equal to what they would have gotten under intestacy. One reason for this is that California recognizes that while people should update their estate planning documents after life-changing events (e.g. getting married, having kids, etc), not everyone does that so every will and trust will always be out-of-date and can’t be read literally. As with omitting your spouse, there are a few ways in which you can actually leave your children out of your will completely. Those ways are enumerated in Section 21621 of the California Probate Code. You left your child out of your will intentionally and that intention is apparent from the will in some way, You left property to the parent of the child instead of leaving the property to the child directly, or You provide for the child in some other way outside of your...

California Will Drafting – Omitting Your Spouse

Previously, I made a post about how to make a will under California law. I also have a video on my Youtube channel about it. One issue that pops up a lot when drafting a will is how to — basically — disinherit someone. This might be done out of spite or might be done intentionally because, for instance, the spouse is independently wealthy or the person making the will has provided for their spouse in some other way already. The problem that arises is that many people who are writing their will think they can disinherit their spouse by simply leaving them out of the will. In other words, by not mentioning their spouse in the will, their spouse will be disinherited. This isn’t the case at all in California and it’s because of California Probate Code section 21610 which provides that the assumption is that omitting your spouse from your will was accidental and that, unless proven otherwise, your spouse will get: Half of the decedent’s community property, Half of the decedent’s quasi-community property, and A share of the decedent’s separate property equal to what the spouse would have received under California’s intestate succession scheme if the decedent had died without a will. This share, however, will be capped at half of the decedent’s separate property. If you do indeed want to leave your spouse nothing for any reason, you should look at section 21611 of the California Probate Code which basically says that the section 21610 presumption will not apply if: The spouse was omitted from the will intentionally and this intention is apparent in the...