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Landmark Surrogate’s Court decision could end the scourge of predatory marriages

July 25, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle
Sons Harvey (left) and Joel Berk (right) with their father Irving Berk, who was the victim of a predatory marriage. Photo courtesy of the Berk family
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Following 11 years of litigation and a 37-day bench trial, acting Surrogate Judge John G. Ingram issued a decision that is likely to avoid a potential trend of predatory marriages in New York state.

Members of the Trusts and Estates bar in NYS had been eagerly awaiting the outcome of case between Hua Wang, also known as Judy Wang, and the family of Irving Berk. It was the first trial to apply the new tests created by New York’s Appellate Division and the decision is seen as a sign of change in the court’s attitude towards what is considered an increasing problem of elder exploitation.

“This might be a warning to people in the future that the courts are aware of this topic and are sensitive to it,” said Dominic Famulari, president of the Catholic Lawyers Guild, who regularly practices in the Surrogate’s Court. “From reading the decision, it appears that Judge Ingram was able to parse through all of the evidence and testimony and see the real truth here.”

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The fight over Berk’s multimillion-dollar estate started when Wang was hired as his live-in caretaker in 1997 when Berk was 91 years old. From that time until his death at age 100, she was in charge of his care 24/7 while he became mentally incapacitated, according to court documents.

In June 2005, when Berk was 99 years old, Wang and Berk were married in a civil ceremony that was witnessed only by a hired Mandarin translator. Nobody in the Berk family was told about the marriage until after his death when Wang told Berk’s sons on the way to the funeral home. Despite that fact that she was not included in the will, she insisted that she was owed a third of the estate as his wife as NYS law stipulates.

To make matters worse, the sons soon found out that shortly before his death, Wang had transferred Berk’s lucrative trade school into her name.

“In the initial ruling in 2008, Surrogate’s Court Judge DianaJohnson issued a ruling, there was no trial, that even though this might be unfair, and even acknowledged that it could invite a bunch of deathbed marriages, that she couldn’t do anything about it because of the law that was on the books at the time,” said Jessica M. Baquet, a partner at Jaspan Schlesinger LLP., who represented the Berk family in the case.

The family appealed the initial ruling and, in a landmark decision, the Appellate Court ruled that for the first time a surviving spouse could be disqualified from inheriting if a certain test was met. The case was sent back to Kings County Surrogate’s Court, but not before it ended up in the Appellate Division again for more clarity on the issues. Eventually if found its way in front of Surrogate Ingram.

“Surrogate Johnson seemingly excluded undue influence and we thought that was an incorrect reading of the appellate division’s ruling,” said John G. Farinacci, a partner of Ruskin Moscou Faltischek P.C., who also worked on behalf of the Berk family. “We immediately moved the Appellate Division for a stay of the trial because it would be harmful for our clients to try the case under those circumstances. Not only did the appellate court did halt the trial, it fast tracked the appeal and found that [we were] correct and that the burden of proof was only on us by a preponderance of the evidence.”

After a 37-day trial in front of Justice Ingram, where more than 30 witnesses were called to testify, the judge ruled in favor of Berk’s family and excluded Wang from any inheritance.

The facts that the judge needed to determine were whether or not Wang knew that Berk was mentally incapacitated, did she take unfair advantage of him by marrying him for the purpose of obtaining benefits, and they she exercise undue influence. This standard will now apply to similar cases in the state.

“Elderly exploitation is nothing new,” said Farinacci. “It’s probably increased inserverity as people live longer and are sometimes kept alive by artificial needs, sometimes too long. It can be a great opportunity to exploit somebody. This case closes a loophole where there was an inconsistency in our law.”


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