94-year-old Florida woman beaten/house set on fire over will

A 65-year-old Florida caregiver beat a 94-year-old woman and set her house on fire after they got into an argument over the victim’s will. Roman Dusk, 65, was arrested last Thursday after police said he returned to the house a few hours after the attack on lifelong friend, Dorothy Spears .

According to the sheriff’s office, Dusk threw Spears to the floor and repeatedly stomped on her chest and left her to die. He then and then set fire to a plant in her room. Dusk was angry, according to the cops because he believed his friend had decided to leave her home to someone other than him.

The Orlando Sentinel reported

The woman said Dusk was intoxicated when he confronted her about her will about 2 p.m. Thursday, according to the report.

“You are 94 years old, and people shouldn’t live that long. I’m here to kill you,” Dusk said as he jumped on her, the report shows.

The woman told deputies she thought she was dying and struggled to breathe.

“Roman, you have killed me,” she told him, according to the report.

Dusk then left the house and Spears woman struggled for two hours to crawl to the phone and call 911.

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LOCATING MISSING HEIRS

Whether a family member dies with or without a Last Will & Testament, all interested parties must be located and notified of the decedent’s passing.
Interested parties consist of all the heirs named in the Will or all distributees of the Estate.

A distributee is a family member of the deceased who would inherit if there was no will. Failure to locate an interested party will delay the probate of the Estate.
We can locate missing relatives by conducting extensive internet searches directly or by retaining genologist companies.

As a last resort, we can serve the missing interested parties by publication after the completion of all due diligence and by order of the Court.

However, simply locating an heir is not enough; one would have to first prove his/her status as the legal heir of the decedent. This can be done in two ways:

1)  He/she can produce an Heir ship Affidavit drafted by an individual with knowledge.

2)  By providing a Birth Certificate.

For any assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

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To Give or Not To Give

There are 3 basic options for estate planning. Two require the assistance of an attorney. One only requires a checkbook and a pen

  1. Prepare a Last Will and Testament and leave your property outright to your heirs in a will.
  1. Prepare an Irrevocable Trust: your funds go into the Trust and are distributed over time by your duly appointed Trustee in accordance with the terms of the Trust.
  1. Gift all your money away during your lifetime.

Charles Feeney was a billionaire philanthropist. He chose Option 3. Feeney made his money operating duty-free shops in airports all over the world and had a knack for investing in successful tech start ups like Facebook in which he was an early investor.

By 1982 he was worth over $8 billion and during that year he started giving that money away through a foundation he started called Atlantic Philanthropies, a collection of private foundations located around the world.

You’ve probably never heard of Mr. Feeney because he deliberately remained under the radar.  In January of this year, a profile of him in the New York Times, James Bond of Philanthropy’ Gives Away the Last of His Fortune said this about him:

“His name does not appear in gilded letters, chiseled marble or other forms of writing anywhere on the 1,000 buildings across five continents that $2.7 billion of his money paid for. For years, Atlantic’s support came with a requirement that the beneficiaries not publicize its involvement.

None of the major American philanthropists have given away a greater proportion of their wealth, and starting in 1982, Mr. Feeney did most of this in complete secrecy, leading Forbes magazine to call him the “James Bond of philanthropy.”

Five years ago at the age of 85, his foundation still had $1.7 billion left and the way he had it figured, time was running out. The Times article noted that Feeney achieved his goal by giving the last of the money, $7 million grant to Cornell University, to support students doing community service work.

For those of you who choose to give all your money away, God bless you. For the rest of you who choose to leave your good fortune to your heirs, we can assist you in your estate planning.  Please give us a call at 212-693-3737.

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Old Age and Sickness as Evidence of Lack of Testamentary Capacity

Neither physical injury, illness nor old age alone are considered by courts to be incompatible with testamentary capacity. The question in each case is the degree to which the decedent’s understanding and decision-making were affected, which must be determined on the facts of each case.

“Advanced age is ordinarily accompanied by impairment of the physical or mental faculties, but the will of an elderly person is not for that reason to be rejected. The question is always one of degree. If the testator had in mind the natural objects of his bounty, if he comprehended the nature and extent of his property, and if he understood the business being transacted and the document being executed, then he had the mental capacity to make a will.”  Matter of Heaton, 224 N. Y. 22 Court of Appeals of New York, 1918)

In In re Prevratil, 121 A.D.3d 137, 990 N.Y.S.2d 697 (3d Dep’t 2014) court held that the fact that decedent was in declining state from terminal cancer and died five days after executing his will did not create question of fact as to his capacity.

Similarly, the court found testamentary capacity in In re Alibrandi, 104 A.D.3d 1175, 960 N.Y.S.2d 760 (4th Dep’t 2013) despite fact that decedent had been diagnosed with Alzheimer’s disease around time of will execution and his short-term memory had declined.

To successfully raise the issue of testamentary capacity, hospital records can be determinative. In the case of In re Chaladoff, 2012 N.Y. Misc. LEXIS 1092 (Sur. Ct. Nassau County Feb. 28, 2012), the court found a triable issue of fact as to the testator’s testamentary capacity based on his medical records, despite conflicting testimony of the two attesting witnesses and the supervising attorney. The decedent’s medical records indicated that he had been unable to sign a DNR form the day before the will execution in the opinion of the medical staff because he lacked mental capacity. Also, the medical records stated that the decedent was being administered morphine and he was “barely arousable” on the day of will execution.

Testamentary capacity must be determined on a case by case basis, and it is based on the decedent’s mental state at the time of the execution of the will.

For any legal assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

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Issues Relating To Signing of A Will

In order for a Will or Codicil to be valid, the testator must sign the Will in the presence of two disinterested witnesses.

There are cases wherein New York courts have described the procedure that must be followed for the testator’s signature to be deemed admissible. It is not sufficient that the witnesses know the instrument is a Will. The actual signing of the document itself must have been visible to the witnesses.

“Where two attesting witnesses signed codicil prior to testator, and never saw testator’s signature on document, codicil was not duly executed.” In re Feldman, N.Y.L.J., Mar. 24, 1982, at 13 (Sur. Ct. Bronx County).

In the case of In re Stachiw, 906 N.Y.S.2d 776 (Sur. Ct. Dutchess County 2009), the Surrogate’s Court granted the objectant’s summary judgment motion to deny probate for lack of due execution because one of the witnesses, a hospital technician, was cleaning the decedent’s bathroom when he was asked to come into the room to sign a document. He had no idea what he was signing. In addition, testator’s testimony revealed that the testator neither signed in his presence nor acknowledged his signature to him. Stachiw shows that witnesses sound also be aware of what exactly they are signing onto.

Another question that courts have dealt with is what exactly constitutes as a signature? While the courts insist on strict compliance with the requirement that the testator subscribe his or her will, they are open to accepting a variety of marks as signatures.

In In re Kenneally, 139 Misc. 2d 198, (Sur. Ct. Nassau County 1988), the Surrogate’s Court accepted the words “Love Mother” as decedent’s valid signature for purposes of executing a codicil. The codicil was in the form of a letter. All the other requirements as to due execution were met, and the only question was whether the codicil was “signed”. The court, in accepting “Love Mother” as a valid signature, noted that a will can be signed with initials, the testator’s mark or any visible lines.

To conclude, it must be remembered that at a minimum, the testator should disclose to the attesting witnesses his or her intention to sign by a mark.

For any further information, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737.

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