New York Probate Lawyer Blog
It is not uncommon that a person who dies was the subject of an Article 81 Guardianship proceeding prior to death. The Guardianship statutes are contained in Article 81 of the Mental Hygiene Law. A Guardian for personal needs and property management will be appointed where a person is determined to be incapacitated. Incapacity is defined in MHL Section 81.02 and essentially requires that a person is likely to suffer harm because they are unable to provide for their personal or property needs and they cannot “understand and appreciate” their disability (81.02(b)). It should be recognized that the guardianship provisions rely on an assessment of functionality, or the extent to which a person is able to handle activities of daily living, as opposed to a strict medical or psychological diagnosis.
On its face, it would appear that a determination of incapacity and the appointment of a Guardian would automatically result in a lack of testamentary capacity for such person to execute a Last Will and Testament. However, such is not the case. To begin with, MHL 81.29(b) specifically provides that, where a guardian is appointed, it is not conclusive evidence that someone does not have capacity to dispose of an estate by a Last Will. There are additional considerations as well.
This issue arose in a recent Brooklyn estate case entitled Probate Proceeding, Will of Phylliscita Ismay Samuel, decided by Brooklyn Surrogate Bernard J. Graham on January 11, 2024. In the Surrogate’s Court case, the Court was asked to grant summary judgment and deny probate to a Will, which was executed following a determination of incapacity and the appointment of a Guardian. The party moving for summary judgment relied on this determination to seek the summary rejection of the Will. The Court denied the motion and found that issues of fact existed requiring a trial. The Court’s ruling included recognition that the determination of capacity in a Guardianship case is different from the testamentary capacity required to execute a Will. Article 81 is a test of functionality while testamentary capacity involves just understanding a person’s property, the natural objects of one’s bounty and that the person is entering into a Will.
As to undue influence, a Guardian is not automatically found to be in a position to unduly influence an incapacitated person. The Court also emphasized that documentation of actual coercion must be shown for undue influence. As noted, the Court denied a summary determination that the Will be invalidated.
There was one more aspect of interest in this case. The attorney for the party seeking to invalidate the Will submitted Court papers which were prepared using the assistance of an artificial intelligence application. It was discovered that five of six cases relied upon by the attorney were either erroneous or nonexistent. The Court reviewed this situation and ultimately found that the attorney’s conduct was frivolous. A determination regarding sanctions was deferred by the Court until a later date.
As can be seen from the Samuel case, both Guardianship and Surrogate’s Court cases, especially Will contests, can be complicated. Estate settlement can be delayed due to estate litigation. The assistance of an experienced Guardianship attorney and an Estate attorney can be essential. I have been representing clients in these matters for over forty (40) years. Do you have a question regarding an estate or guardianship? Call Me Now for a free confidential review of your estate matter. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.