IRVING BERK, DECEASED. JOEL BERK ap; HUA WANG, ETC., res

MATTER OF IRVING BERK, DECEASED. JOEL BERK ap; HUA WANG, ETC., res — (FILE NO. 2488/06)In a probate proceeding in which Hua Wang, a/k/a Judy Wang, petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent Irving Berk, the co-executors of the decedent's estate, Joel Berk and Harvey Berk, appeal, by permission, as limited by their brief, from so much of an order of the Surrogate's Court, Kings County (Johnson, S.), dated May 20, 2015, as failed to adopt portions of their proposed statement of the issues to be determined and ruled that they would have the burden of proof, by clear and convincing evidence, at a hearing to determine whether the petitioner forfeited the statutory right of election.

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MATTER OF IRVING BERK, DECEASED. JOEL BERK ap; HUA WANG, ETC., res — (FILE NO. 2488/06)In a probate proceeding in which Hua Wang, a/k/a Judy Wang, petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent Irving Berk, the co-executors of the decedent’s estate, Joel Berk and Harvey Berk, appeal, by permission, as limited by their brief, from so much of an order of the Surrogate’s Court, Kings County (Johnson, S.), dated May 20, 2015, as failed to adopt portions of their proposed statement of the issues to be determined and ruled that they would have the burden of proof, by clear and convincing evidence, at a hearing to determine whether the petitioner forfeited the statutory right of election.

ORDERED that the order is modified, on the law, by (1) adding the following issue of fact to be determined as an alternative ground for forfeiture of the right of election: “3. Did the petitioner exercise undue influence upon the decedent to induce him to marry her for the purpose of obtaining pecuniary benefits that become available by virtue of being that person’s spouse, at the expense of the intended beneficiaries?,” and (2) deleting the provision thereof placing the burden of proof upon the appellants by clear and convincing evidence, and substituting therefor a provision placing the burden of proof upon the appellants by a preponderance of the credible evidence; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Kings County, for further proceedings consistent herewith.

IRVING BERK, DECEASED. JOEL BERK ap; HUA WANG, ETC., res

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