Wills

Published on: January 2, 2023

Medical evidence not sufficient to show lack of capacity. Matter of Estate of Paul Tucker, 2020 NY Slip Op 31604(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Lack of capacity to make a will in New York refers to a situation where the testator (the person making the will) does not have the mental capacity to understand the nature and consequences of his or her actions when executing the will. In order to have the capacity to make a will in New York, the testator must have a general understanding of the nature and extent of his or her property, the natural objects of his or her bounty, and the effect of executing the will. Lack of capacity may result from a variety of factors, including mental illness, dementia, or other conditions that affect cognitive functioning.

In a will contest in New York, medical evidence can be used to prove that the testator lacked the capacity to execute the will. This may involve presenting medical records, expert testimony from treating physicians, or other evidence to establish the testator’s mental state at the time the will was executed. However, just like with any evidence, the court will determine whether it is sufficient.

Background

Published on: October 26, 2022

Surrogate’s Court declined to probate a document that did not meet the requirements of a will. In re the Estate of Wolf, 38 Misc. 3d 564 (N.Y. Sur. Ct. 2012)

by Stephen Bilkis

A will, when properly executed, is a legally enforceable document in which the testator gives instructions as to what is to happen to their property after their death. In this will contest case the Surrogate’s Court has was asked to determine whether a document signed by the decedent was in fact a last will and testament that should be probated.

Under New York law, as in all jurisdictions, there are very specific requirements for a will to be valid. It must be signed by the testator in the presence of two witnesses or a the direction of the testator in their presence. NY EPTL § 3-2.21. With some notable exceptions, the will must also be writing. Further, at the time that they executed the will, the testator must have had the mental capacity to sign the will.

If, as in this case, a will was executed in another jurisdiction, must have been executed in a manner consistent with that jurisdiction. In this case, one of the documents submitted was executed in Pennsylvania.

Published on: April 18, 2022

New York last will and testament failed to meet COVID-related will execution requirements. In re Holmgren (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Holmgren the petitioner, Philip Holmgren, submitted his sister’s will for probate. Even though the will was not contested, because of the novel circumstances surrounding the execution of he will, the Surrogate’s Court, Queens County issued a written opinion as to whether a will that was executed under the temporary COVID-related procedures was legally sufficient.

Requirements for executing a will in New York

For a will to be valid in New York, the law requires that it must be executed in a specific way.

Published on: April 11, 2022

Execution of will satisfied presence requirements under special COVID-related rule. In re Ryan, 71 Misc.3d 217 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

In In re Ryan the petitioner asked the Surrogate’s Court of Broome County to admit a will to probate that was executed under the requirements of special rules that were put into effect to make sure that social distancing requirements where followed.

Requirements for executing a will in New York

In New York, for a will to be valid, it must be executed according to the requirements of New York law. This means that the will must be signed and witnessed.

Published on: April 4, 2022

Holographic will not admitted to probate. In re Koutsakos (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Koutsakos the petitioner asked the Surrogate’s Court of Queen’s County to admit a handwritten will to probate. The will was dated March 18, 2020.

Requirements for executing a will in New York

For a will to be valid in New York, it must be written and executed in the manner required by New York. The rationale for strict requirements is to prevent fraud.

Published on: March 28, 2022

Court determined that will was not revoked. In re Kranz-Marks, 2020 NY Slip Op 50646(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

On August 12, 2018, Kranz-Marks passed away. She left a will dated June 9, 2015. However, the first page of the will had the handwritten word “VOID.” It also included the followed handwritten statements: “Everything will be left to my three daughters: Jessica, Emily, and Erica Marks ONLY!!!” and “My previous will to be executed is with my Aunt Janine Kranz in Wading River.” The testator’s signature was below the statements.

The petitioners argue that the writing on thee 2015 will constitute a revocation of that will under EPTL § 3-4.1(b). They sought to administration of the estate under the laws of intestacy rather than probating the 2015 will. In addition, a 2014 will was submitted to the court by another party along with a petition for that will to be probated.

Among other things, the Surrogate’s Court of Orange County had to determine whether the 2015 will was effectively revoked.

Published on: January 18, 2021

Surrogate’s Court considered whether a Military Testamentary Instrument should be admitted to probate. In re Johnson, 69 Misc.3d 357 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

A military testamentary instrument is sometimes called a “military will.” It is a last will and testament as described by federal statute 10 USCS § 1044d. It can be executed only by or on behalf of a person who is eligible for military legal assistance. Like any other type of will, for a military testamentary instrument to valid, certain formalities must have been present at the time it was executed. It must be executed by the testator in the presence of a military legal assistance counsel acting as presiding attorney and in the presence of two witnesses. Like a will, it takes effect upon the death of the testator. It has the same effect as a will that was prepared and executed according to the laws of the state in which it is presented for probate.

In In re Johnson, the wife of decedent Johnson filed a petition for probate along with a military testamentary instrument purporting to be Johnson’s last will and testament. For an instrument to be admitted to probate, the general rule is that it is up to the proponent to prove that the document complies with the requirements of New York law. Under EPTL § 3-2.1(a), for a will to be valid, the requirements are:

The testator must have signed the instrument at its end

Published on: October 8, 2019

Court Considers Whether to Reopen Probate After a Year- In re Carney’s Will, 220 N.Y.S.2d 869 (N.Y. Surr. Ct. 1961)

by Stephen Bilkis

In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed. This means that all interested parties must be notified and given the opportunity to object to the will. Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors. In addition to listing the names of interested parties on the citation, the petitioner must send each of them a notice known as “citation.” This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings. For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will. However, anyone entitled to a citation can waive it. On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate. This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently. Three days after the decedent passed away, his funeral was held. At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it. E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it. After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver. The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

Published on: March 31, 2019

Court Decides Case Involving Promissory Estoppel

by Stephen Bilkis

NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

Published on: November 4, 2018

Surrogate Court decides a will construction case where the provision of the will creating a trust failed – In re Dawe, 60 Misc.3d 949 (N.Y. Surr. Ct., 2018)

by Stephen Bilkis

In this case the Surrogate’s Court had to decide how to make sure that a testator’s overall testamentary plan remained intact where a portion of the will is determined to be invalid.

A. Dawe died on March 11, 2014. He was never married and never had children. He was survived by his two brothers, B. Dawe and R. Dawe. However, R. Dawe died in April 2014. The will was admitted to probate in September 2014, with B. Dawe being appointed as co-executor along with J. DeMuro, a friend of A. Dawe

In the will, the decedent made a specific gift to B. Dawe of his 13-year-old cat as well as $6000 to take are of her. The decedent was passionate about genealogy and spent a great deal of time researching Dawe family history. Decedent stated in his will that he is making no additional dispositions to his family. Instead, the decedent directed that the residue of the estate be transferred to the Dawe Family Trust that is to be used to continue and expand a genealogical website that the decedent created, and to create an archive of family genealogical data, photos and heirlooms. The will further provides that 21 years after the death of B. Dawe and his son, E. Dawe, the trust is to terminate and the remaining assets are to go to the Godfrey Memorial Library of Middletown, Connecticut.