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Petitioner Claims Grandmother’s Will Invalid Due to Lack of Capacity


A New York Probate Lawyer said the last will was executed approximately one year prior to the owner’s death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman’s death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. All of the testimony also indicates that after her stroke, the woman’s children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. A New York Will Lawyer said until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.
On the day prior to the execution of the woman’s proposed last will, the woman’s first son called the attorney based on the recommendation and gave him instructions which he followed when drafting the last will. The attorney and his wife, who was also his secretary, went to the woman’s home to serve as the attesting witnesses, admittedly without any knowledge of the woman’s competency. Upon their arrival, they went to the second floor bedroom where the woman was propped up in her bed. The attorney testified that he read and explained each provision of the last will, then asked if she understood it and the woman responded that she did.

After the attorney reviewed the last will with the woman, he asked her why was she favoring her first son over her other children. A Staten Island Probate Lawyer said the woman, who had her left hand under a blanket raised that hand, and with a clenched fist and some emotion, indicated she favored her first son because he is crippled.

The attorney recollected that the woman had difficulty signing the last will, but did so with her right hand to the best of her ability. Thereafter, the attorney, his wife and the woman’s aide were requested to, and did, sign as attesting witnesses. The last will contain an attestation clause. The attorney stated that the execution ceremony was in compliance with the law and that the woman understood the provisions of the will and possessed capabilities to perform it.

However, the attorney did not ask the woman any specific questions to ascertain her knowledge of the date or time, her assets or her relationship to family members other than her first son. The witness explained that he did not question the woman concerning the nature and extent of her property because the son told him that the house was her sole property. The attorney then charged $75 for his services.

According to the attorney, the woman’s first son supplied the $5,000 figure that was to be paid to the woman’s other children upon the sale of the realty. Although the attorney had no idea about the value of the house, sometime thereafter he learned that the house was originally purchased for $25,000. The attorney agreed on cross examination that it was highly unusual for him to receive drafting instructions solely from the principal beneficiary.

After the woman’s death, the first son called the attorney and indicated that he wanted the last will be validated, and the attorney sent a copy of it to the woman’s other children and advised them that it would be offered for validation.

Subsequently, the first son told him that he no longer wanted to probate the will, as its provisions were causing a family dispute. Shortly before the first son’s death, he again told the attorney that he was interested in validating the last will. But, no action was taken as another son had recently died.
The attorney had never met the woman’s first son prior to the completion of the last will, but the son subsequently retained him in connection with a landlord-tenant proceeding.

The testimony of the attorney’s wife with respect to the execution ceremony was essentially the same as her husband’s. The third witness, the woman’s aide, did not testify presumably because, at the time of the trial, none of the parties knew her whereabouts.

The woman’s daughter testified about a subsequent last will allegedly executed by her mother. The opponent called two of the woman’s grandchildren as witnesses.

The first grandchild opined that her grandmother had absolutely no knowledge about her assets and never left her second floor apartment after her stroke. The woman’s children took care of her shopping and finances. The woman did not have her own checking or other bank account, and did not know what a mortgage was. Further, most of her conversations with the woman were spiritual in nature.

At some point, the woman’s long-time aide was fired by the woman’s first son, without consultation with any of the family members, and the woman’s condition markedly deteriorated after the aide left.
The second granddaughter testified that after her grandmother’s stroke she regularly visited the woman, usually accompanied by her mother. At some point, they no longer were able to have any long conversations with the woman. Although she believed that her grandmother generally understood what was said to her, the woman’s responses were usually limited to yes or no. She had to guess what her grandmother might want and then would ask whether she wanted that particular thing. The witness also agreed with her cousin that the woman’s condition worsened after her aide left, and thereafter, she hardly spoke.

Based on records, the opponent has the burden of proving the evidence that, at the time of the completion of the last will, the woman possessed good mental capabilities, and must demonstrate that the woman understood the nature and consequences of executing a will, knew the nature and extent of the property that she was disposing of and knew the natural objects of her bounty and her relations with them.

Based on all of the evidence presented in court, the court finds that the opponent failed to meet his burden of proof on the issue of testamentary capacity. The court also finds that the opponent established the existence of a confidential relationship between the woman and her first son and that the confidential relationship, coupled with the facts and circumstances surrounding the preparation and execution of the last will favoring the first son and his estate, create the inference that the instrument was a product of undue influence exerted by the first son over his mother. Furthermore, the opponent failed to present evidence to overcome the inference of undue influence.

As a result, the decision constitutes the decree of the court that denies validating the woman’s last will. The chief clerk is ordered to mail a copy of the decision and decree to all attorneys. The court lastly ordered that all attorneys and the members of the family who so desire shall appear at the court to discuss the future administration of the estate.

Last wills that are offered for probate usually flames dispute in the family. If you need help with such kind of situation, you can approach the Bronx County Probate Lawyer or Bronx County Estate Attorney. You can also seek legal assistance of the Bronx County Estate Administration Lawyer at Stephen Bilkis and Associates.

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