Brooklyn Surrogate's Court
Brooklyn Surrogate’s Court (NYLJ/Rick Kopstein)

A Surrogate’s Court judge barred a caretaker-turned-wife of a man with dementia from testifying about whether she should be equitably estopped from exercising her right over his estate.

When the late Irving Berk died in 2006, he left his $5 million estate to his children and grandchildren, including co-executors Harvey and Joel Berk. But Irving Berk’s caretaker, Hua Wang, who had married him in secret, sought to enact her elective right to his estate.

At issue was whether CPLR §4519, known as the Dead Man’s statute, barred Wang’s testimony because she is interested in the outcome of the hearing about Berk’s estate.

Jordan Weitberg, a principal at Bressler, Amery & Ross, argued Wang’s interest is not “present, certain or vested” in the hearing on whether she should be equitably estopped from exercising her interest. He said her interest would only become vested in a later proceeding.

But Acting Brooklyn Surrogate’s Court Judge John Ingram in a May 9 decision in Matter of Berk, 2488/2006, said the hearing involves Wang’s pecuniary interest in the estate and thus barred her testimony.

Jessica Baquet, a partner at Jaspan Schlesinger representing the Berk brothers, said the case may be one of first impression because no court has yet applied a new test on whether a surviving spouse has forfeited his or her elective share under the Appellate Division, Second Department’s 2010 rulings in Campbell v. Thomas and Matter of Berk.

“The public policy behind the Dead Man’s statute is clearly served by the court’s decision,” she said. “If Wang were permitted to testify against them, it would result in an entirely one-sided narrative about the decedent’s knowledge and understanding of the marriage, and his desire to enter it.”

Weitberg declined to comment on the ruling. John Farinacci, a partner at Ruskin Moscou Faltischek, is co-counsel for the Berks.