New York Probate and Estate Administration Lawyer Blog

Published on: April 12, 2023

Will rejected because it was not properly executed. Matter of Basch, 58 A.D.3d 748 (N.Y. App. Div. 2009)

by Stephen Bilkis

In New York, executing a valid will requires adherence to several statutory formalities. Firstly, the testator must be at least 18 years old and of sound mind to have the mental capacity to understand the nature and consequences of making a will. Secondly, the will must be signed by the testator or someone in their presence and direction if the testator is physically unable to sign. Thirdly, at least two witnesses, who are not beneficiaries under the will and are at least 18 years old, must sign the will in the testator’s presence and at their direction. Fourthly, the document must clearly express the testator’s intent to make a will and dispose of their property upon their death. Failing to follow any of these formalities could result in the will being deemed invalid, making it important to consult a lawyer to ensure proper execution.

Matter of Basch highlights the importance of following legal formalities in the execution of a will, and the consequences of failing to do so.

Factual Background

Published on: April 10, 2023

Court was considered a will contest where there were allegations of undue influence. Matter of Rinaldi v. Chait, 39 A.D.3d 747 (N.Y. App. Div. 2007)

by Stephen Bilkis

Undue influence in the context of making a will in New York refers to a situation where someone exerts pressure or influence on a testator (the person making the will) to make decisions that they would not otherwise make if left to their own free will. This pressure or influence can be so severe that it essentially overpowers the testator’s free will, and causes them to make a will that does not reflect their true intentions or desires.

In New York, the law recognizes that undue influence can occur in the making of a will, and will invalidate a will if it can be proven that the testator was unduly influenced. Matter of Rinaldi v. Chait addresses a dispute between the executor of an estate and the decedent’s family members. This case provides an important precedent for future estate disputes and highlights the importance of proper estate planning.

Factual Background

Published on: April 5, 2023

Appellate Division considered whether a trust was invalid based on last of capacity. Matter of Scelfo, 22 N.Y.3d 278 (N.Y. 2013)

by Stephen Bilkis

The disposition of a decedent’s assets can be a complex and emotional process, particularly when there are disputes over the validity of a will or trust. The case of Matter of Scelfo is an example of such a dispute, where family members contested the validity of a trust created by their mother on the basis of lack of capacity.

In New York, to create a trust, the settlor (person creating the trust) must have the capacity to do so. This means that the settlor must have the mental ability to understand the nature and consequences of creating a trust, the extent and nature of their property, and the identities of the beneficiaries of the trust. If a settlor lacks the capacity to create a trust, the trust may be invalidated. Lack of capacity may arise due to various factors such as mental illness, disability, or injury. The test for determining capacity to create a trust is the same as that for creating a will.

To have a lack of capacity to create a trust in New York, a person must be shown to have lacked the ability to understand and appreciate the effect of creating a trust. This could be demonstrated through evidence that the settlor did not understand the nature and purpose of a trust, or that they did not have the mental capacity to understand and manage their financial affairs.

Published on: April 3, 2023

Decedent’s children contested will on the basis of lack of capacity and undue influence. In re Estate of Lurie, 56 A.D.3d 334 (N.Y. App. Div. 2008)

by Stephen Bilkis

In the case of In re Estate of Lurie, the New York Appellate Division considered a dispute over the validity of a will and the distribution of a deceased individual’s assets. The case provides important insights into the requirements for a valid will and the legal rights of heirs and beneficiaries in estate disputes.

Factual Background

In 2004, William Lurie passed away, leaving behind a will that was executed in 1991. The will named Lurie’s wife, Judith, as the executor of the estate and the sole beneficiary of Lurie’s assets. However, Lurie’s two adult children, Richard and Susan, contested the validity of the will, claiming that it was executed under undue influence and that their father lacked the mental capacity to make a valid will.

Published on: March 29, 2023

In a will contest, the court found that testator was cognitively impaired at the time her will was executed. Matter of Gittleman, 32 A.D.3d 494 (2d Dept. 2006)

by Stephen Bilkis

In the Matter of Gittleman, the court considered the issue of testamentary capacity in the context of a will contest. Testamentary capacity refers to a person’s ability to understand the nature and consequences of creating a will. The law requires that a person creating a will must have the capacity to understand the extent of their property, the natural objects of their bounty, and the disposition they are making. In order to establish testamentary capacity, the testator must be able to understand the nature and consequences of their actions, and they must not be suffering from any mental illness or infirmity that would impair their judgment.

Background

The case involves the estate of Lillian Gittleman, who passed away in 2003. Lillian had executed a will in 2001, in which she left her entire estate to her son, Leonard. Her other son, Jeffrey, contested the will, claiming that Lillian lacked the mental capacity to create a valid will at the time she executed it.

Published on: March 27, 2023

Executor did not have documentation to support the amount of work she performed. Matter of Newland, 846 N.Y.S.2d 317 (Sur. Ct. 2007)

by Stephen Bilkis

The fees that are paid to an executor or administrator for managing and administering an estate are called executor fees. In Matter of Newland, the Surrogate’s Court was asked to determine if the fee that the executor requested was reasonable.

Background

In this case, the decedent, Charles Newland, had appointed his niece, Rosemary Newland, as the executor of his estate. Rosemary hired an attorney to assist her in administering the estate and sought to receive fees for her services as executor. The estate’s beneficiaries objected to the fees, arguing that Rosemary’s services were minimal and that the fees she was seeking were excessive.

Published on: March 22, 2023

Court determined that a wrongful death compromise did not impact other probate claims. Estate of Payne v. Williams, 296 A.D.2d 547 (2002)

by Stephen Bilkis

Estate of Payne v. Williams involved a dispute between the Estate of Gladys M. Payne and her daughter, Louise Williams, who was accused of exerting undue influence on her mother in the creation of her will. In addition to the probate issues, the case also involved a wrongful death compromise.

A wrongful death claim is a legal action brought by the family members of a person who died due to the negligent or intentional actions of another person.

Background

Published on: March 20, 2023

Court determined that the will was not properly executed and the law of intestate succession applied. Matter of Estate of Rymanowski, 183 AD2d 915 (3d Dept 1992)

by Stephen Bilkis

Intestacy refers to the situation where an individual dies without a valid will, leaving their assets to be distributed according to the state’s laws. In New York, the laws of intestacy dictate that if an individual dies without a will, their next of kin would be entitled to the decedent’s estate. The distribution of assets according to the laws of intestacy may not align with the deceased individual’s wishes, highlighting the importance of having a valid will in place to ensure that their assets are distributed as intended.

The Matter of Estate of Rymanowski demonstrates the importance of adhering to the legal formalities for will execution. In New York, a valid will must be in writing, signed by the testator, and witnessed by at least two disinterested witnesses who sign in the presence of the testator. Failure to comply with any of these requirements can result in the will being invalidated and the estate being distributed according to the laws of intestacy.

Background

Published on: March 15, 2023

Court found that there was evidence of undue influence and invalidated the will. Matter of Coiro, 134 A.D.3d 1305 (3d Dept. 2015)

by Stephen Bilkis

Matter of Coiro revolves around the issue of undue influence in the context of a will contest. The case is significant in the field of estate and trust law, as it provides a clear framework for determining whether undue influence has played a role in the creation or alteration of a will.

Under New York law undue influence refers to a situation where a person’s free will is overpowered by the influence of another. In the context of a will contest, undue influence occurs when a person uses their power or authority to manipulate the testator (the person creating the will) to change their testamentary disposition to benefit the influencer. To establish undue influence, the contestant must prove three elements: (1) the existence and exertion of influence, (2) the effective operation of such influence so as to subvert the mind of the testator, and (3) the execution of a will that would not have been made but for the influence.

Background

Published on: March 13, 2023

Court was asked to determine whether the decedent’s wife had effectively disclaimed her interest in her deceased husband’s estate. Estate of Fasano, 2020 NY Slip Op 51406(U)

by Stephen Bilkis

Estate of Fasano involved the interpretation of a decedent’s will and whether his wife had effectively disclaimed her interest in his estate. In New York, a disclaimer of an interest in an estate must be in writing, signed by the disclaimant, and filed with the court within nine months of the decedent’s death. It is important to ensure that the disclaimer meets these requirements to be valid. The disclaimer should clearly state that the disclaimant is renouncing their right to an interest in the estate. It should also include the name of the decedent and the specific interest being disclaimed.

Background

The decedent in this case was Joseph Fasano, who passed away on September 23, 2019. He was survived by his wife, Patricia Fasano, and several siblings. The decedent’s will was executed on May 6, 2016, and named his wife as the sole beneficiary of his estate. However, in the event that his wife predeceased him, the will directed that his estate be divided equally among his siblings.