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Medical records raise questions of the reliability of witness testimony in a testamentary capacity case.  In re Ramirez, 68 Misc.3d 1207(A) (N.Y. Surr. Ct. 2020)


Under New York law, for a will to be valid, the person making the will, known as the testator, must have been of “sound mind and memory” at the time the will was executed. Testamentary capacity refers to the mental ability of the testator to understand the meaning and impact of signing a will.

In In re Ramirez, the will of decedent Ulysses Ramirez was submitted for probate by his surviving spouse, Francesca.  Francesca was Ulysses’ fourth wife.  He was also survived by 2 adults sons from prior marriages, David and Mikhail. The decedent died on April 23, 2018, less than a year after he met Francesca.  At the time he met Francesca, he was being treated for terminal prostate cancer.  About 7 months after he met Francesca, Ulysses left the home he was living in with Mikhail and moved in with Francesca.  Francesca and Ulysses were married in December 2017.  He executed a new will on April 14, 2018, leaving all his property to Francesca and naming her the executor.  The estate included his condominium where his son Mikhail lived, worth around $750,000. He died shortly thereafter.  A will contest was initiated based on a number of reasons, including lack of testimony capacity.

The objectors cited several irregularities surrounding the execution of the new will.  The will was prepared based by Francesca’s personal attorney who never met or spoke with Ulysses and who lived 350 miles away. The attorney drafted the will and a power of attorney based on the instructions from Francesca that she provided via text messages. Francesca’s neighbor, Karen, and her neighbor’s son, Alexander, were the witnesses.

While the witnesses, Karen and Alexander, both stated that at the time the will was executed Ulysses was aware of what was going on and was competent to make a will, the objectants presented evidence contradicting these assertions. The medical records dated around the same time that the will was executed, indicate that Ulysses’ was health condition was grave.  In fact, it was in a state of decline.

Evidence was presented that Francesca had concerns about Ulysses’ mental state on April 5th—9 days before the will was executed.  She contacted the doctor and mentioned that Ulysses was “mentally not there.” She also mentioned  that he was very debilitated, not eating, and vomiting intermittently. She indicated that was in a lot of pain and only medication that makes him sleep helped.

The decedent’s medical records indicated that in the days leading up to the executing of he will, he was heavily medicated.  He had been taking the Oxycodone, Dilaudid, and Fentanyl. On April 10, 2018 he was admitted to the hospital where his Fentanyl dosage was increased and he was given Morphine. By April 11, 2018, it was clear that he was dying and palliative medical services were offered and Morphine Sulfate injections were started. Although at the time the will was executed records indicated that Ulysses was in hospice care, Francesca denied that he was.

In addition, the decedent’s first wife, Klein, supported the objectant’s position that Ulysses was not of sound mind when the will was executed.  Klein was as a registered nurse. She testified that Ulysses was always groggy and not thinking clearly.  She also stated that based on her observations, the decedent would not have been able to read or understand the contents of the will at the time it was executed. There was additional evidence that the decedent had not had food for 6 days at the time that the will was executed.

Francesca, the petitioner, moved for summary dismissal of the objection to probate based on lack of testamentary capacity, among other objections.  She had the burden of proving that  (1) the decedent understood the nature and consequences of executing a will; (2) he knew the nature and extent of his estate; and (3) he was aware of those who would be considered the natural objects of his bounty.

The court acknowledged that by submitting a copy of the will along with the annexed self-proving affidavit and the transcripts of the examinations of the two attesting witnesses, the petitioner had met her burden. However, the court denied the petitioner’s request for summary dismissal of the objection to the will based on lack of testamentary capacity.  The court found that the objectants presented evidence that conflicted with the petitioner’s evidence.  As a result, the issue of testamentary capacity should be left up to the trier of fact to decide.

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