Surrogate Court Deems Attempted Lifetime Transfer a Fraudulent Conveyance

January 26, 2018

By: Carole M. Bass

In Schwartz v. Bourque, 2017 N.Y. slip op. 31621(U) (Sur. Court, Nassau County, June 14, 2017), the  Court vacated a deed transferring the decedent’s interest in real property to her granddaughter, as a fraudulent conveyance, where the same real property was the subject of a preexisting contract to make a testamentary disposition in favor of the decedent’s daughter.

Contracts to make a testamentary disposition arise in a number of circumstances, most notably in prenuptial and postnuptial agreements. If the parties’ intent is that the transferor be permitted during his lifetime to dispose of his interest in the property subject to the contract to make a testamentary disposition, it’s imperative that such intent be included in the contract.

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