New York Probate and Estate Administration Lawyer Blog
Probate Lawyers said that this issue is a frequently recurring problem in the Surrogate’s Courts, that of claims against estates or beneficiaries of estates by the State Department of Mental Hygiene.
Testator M died August 9, 1975 leaving his widow S as his sole distributee. His will executed in 1968 and admitted to probate provided a trust of one-half his net estate for S, remainder to two named cousins. (The cousins were also residuary legatees) As nominated executors, they have been issued letters. The gross estate is approximately $75,000.
A New York Estate Lawyer said that in 1968, shortly after the execution of the will, S was institutionalized and except for brief periods has continued as a patient in one of the institutions in the Department of Mental Hygiene (Department). A Committee has been appointed for her. The Committee is holding assets (apart from any beneficial interest in her husband’s estate) of over $100,000.
The Department has filed a claim with the Committee not with the estate, for some $60,000. This claim is approximately equal to the total net estate of the deceased husband, M.
Incidental to another proceeding (which will be separately decided) the Committee of the widow advances the contention that the estate of the deceased husband, as the estate of a responsible relative, is Primarily liable to pay the claim of the Department.
Manhattan Probate Lawyers said that Department’s claims are governed by statutes originating in the Insanity Law of 1896. A recent recodification of the Mental Hygiene Law has created a problem for our Surrogate’s Courts. More important to the issue under consideration is the factor that each of the contribution statutes contained a proviso that the recipient or patient or the responsible relative could be compelled to contribute only if of ‘sufficient ability’ during the period when care or assistance was being furnished.
New York City Probate Lawyers said that recovery statute authorizes a Department to recover from a recipient or patient or responsible relative who may not have been of sufficient ability at the time care or assistance was furnished but who later came into possession of property. As discussed in Matter of Colon, supra, 83 Misc.2d at 349–350, 372 N.Y.S.2d at 820–822, recovery statutes are purposed to recover from either (a) windfalls (generally personal injury recoveries or inheritances) of either the recipient himself or his responsible relatives or (b) from the Estates of deceased recipients or responsible relatives. Such recovery statutes authorize the Commissioner to commence an action against a recipient, his estate, a responsible relative or the estate of a responsible relative discovered to have real or personal property.
Prior to the latest recodification of the Mental Hygiene Law former Mental Hygiene Law § 24 contained within its 10 subdivisions both a contribution statute and a recovery statute.
Subdivisions 2 and 4(a) were the contribution statutes. These contained the usual provisions that the recipient (or his Committee or fiduciary possessing assets) and his responsible relative (spouse, or parent if recipient is under 21) were jointly and severally liable.
Subdivision 6 of section 24 was the Department ‘recover’ statute. It permitted the Commissioner to bring as action against (a) the recipient (or his Committee or other fiduciary holding assets) or (b) a deceased recipients’ estate, or (c) a living responsible relative, or (d) the estate of a deceased responsible relative–if any of these were ‘discovered’ to have real or personal property. Like other recovery statutes, there was no requirement that these must have been of ‘sufficient ability’ at the time care or assistance was being furnished and there was no provision that these were jointly or severally liable.
However in 1972 the entire Mental Hygiene Law was as previously noted recodified. In place of section 24 with its 10 subdivisions including ‘contribution’ provisions and ‘recovery’ provisions, there was substituted two new sections, 43.03(a) and 43.07(c).
In the context in which it appears in Article 43 of the Mental Hygiene Law (Fees for Services) this is a ‘contribution’ statute. Its purpose is to authorize the Department to compel Current contribution from either (a) the recipient patient (or his Committee or other fiduciary holding assets for the patient) or (b) from his responsible relative (spouse or parent (if patient is under 21)). Among these two classes, these were jointly and severally liable to contribute. Omitted from section 43.03(a) was the requirement of all such contribution statutes that contribution may be compelled only from persons who were of sufficient ability. This requirement is however read into all such contribution statutes.
In place of the recovery statute (subdivision 6 of former section 24) was substituted section 43.07 (subd. c) headed Bill collection procedures. Subdivision (c) provides:
An action to collect fees due pursuant to this chapter shall commence within six years from the accrual of the cause of action. This cause of action accrues when the fees become due.
This is not a ‘recovery’ statute such as former subdivision 6 of section 24 of the Mental Hygiene Law or section 104 of the Social Services Law. It is the repeal, no doubt inadvertent of the former recovery statute (former MHL § 24 (subd. 6)) that has created problems for the Surrogate’s Courts in disposing of Department of Mental Hygiene claims.
For example–in the absence of a ‘recovery’ statute, in an action by the Department brought under section 43.07 (subd. c) it might be a valid defense by (1) a patient who has come into property by way of an inheritance, or (2) a living responsible relative who has come into such an inheritance or (3) the estate of a deceased responsible relative–that these are not liable since not of ‘sufficient ability’ at the time care was being furnished to the patient and therefore not presently liable for accrued fees.
Obviously this consequence was not intended by the Legislature. Present sections 43.03(a) and 43.07(c) should be construed, as intended, to permit recovery by the Department.
Section 43.03(a) provides that the assets of the patient (or his Committee or other fiduciary) and the assets of the responsible relative or his estate (spouse or parent (of patient under 21)) are jointly and severally liable. This merely permits the Department to proceed against either party. It does not determine priority of liability Inter se.
When a patient (or Committee or other fiduciary) has independent assets (i.e. not acquired by inheritance from the estate of the responsible relative) such assets are primarily liable. In a recent text it is stated that as between a husband and a patient-wife, the husband’s assets have in the past been primarily liable but that this is not the modern rule. The latter is established by the cited decisions. The decision is with the Department to initiate the action or claim. When another is primarily liable that party should be brought into the proceeding.
However where the patient has no independent assets, the claim will be made against the estate of the responsible relative (spouse or parent (of patient under 21)). If the patient is a beneficiary of the estate, the patient’s beneficial share is primarily liable and the estate’s assets secondarily liable to the extent that the patient’s share is insufficient to pay the Department’s total claim.
In the instant case there is no problem. The Department is proceeding against the Committee, not the estate of the spouse. The Committee has substantial independent assets, apart from the patient’s beneficial interest in her trust. She (or her Committee) was obviously of ‘sufficient ability’ to pay for her care during the period she was a patient. Subject to the limitation in Mental Hygiene Law § 43.07(c), her independent assets are primarily responsible to pay the Department claim. The Committee’s claim against the estate of her deceased husband is dismissed as a matter of law.
Claims against the estate may involve different statute applicable. In order to successfully litigate your claim, you must have a Kings County Probate Attorneys or Kings County Estate Lawyer at your side to properly raise your arguments.
If you are looking for an estate or probate attorney, contact the Stephen Bilkis & Associates. We can help you in all issues concerning the probate of a will, settlement and claims against the estate.