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

Water Damaged Will

In the case Estate of Torleiv Larsen, 2016 NYLJ (Richmond County Surrogate Court) Alexander James Larsen, decedent’s grandson and sole distributee, sought to admit a document purporting to be decedent’s will. The document had sustained water damage and the signatures of decedent and attesting witnesses were wiped away.

The question before the court was whether an original will, not having the decedent and attesting witnesses’ signatures- which were wiped of as a result of water damage- could be admitted to probate. It answered in the affirmative.

The will had been placed in decedent’s home safe in the basement, which was flooded in January 2016. The decedent believed the safe was waterproof and did not check the safe’s contents until his grandson opened it to get the will, after the decedent’s death.

Even though the signatures were wiped from the original will, a conformed copy of the will, in the drafting attorney’s possession, was submitted to the court along with the original. The copy included the signatures of decedent and attesting witnesses, who provided an after death affidavit of attesting witness.

Article 14 of the Surrogate’s Court Procedure Act (SCPA) provides the conditions for a destroyed will to be admissible to probate:

  •  1407. Proof of lost or destroyed will.

A lost or destroyed will may be admitted to probate only if,

  1. It is established that the will has not been revoked, and
  2. Execution of the will is proved in the manner required for the probate of an existing will, and
  3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

In a 1950 NY Surrogate Court’s case, In re Christensen’s Will, 197 Misc 152, a damaged will was upheld because “the testatrix never intended to destroy her will and that the testimony of the subscribing witness, together with the correct copy of the said will, justify the admission to probate of the questioned document as the last will and testament of the decedent.”

A copy of a will was upheld by a Louisiana Court when it was determined that the original will was destroyed by Hurricane Katrina, and the decedent did not intend to have it revoked.  In re Succession of Dalier, 19 So. 3d 8 (La App 4 Cir 2009).

In Larsen, the Court found that the three prongs of SCPA 1407 were proven and facts clearly indicated that decedent never intended to revoke his will, as he placed the will in what he believed was a waterproof safe in his basement. The Court stated it was satisfied with the validity of the document offered for probate, and admitted the damaged will to probate.

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

Dead man can’t convince judge he’s alive

This one is a bit old, but it came across our digital transom and we thought it was interesting enough to blog about.

Ohioan Donald E. Miller Jr wanted to get a new driver’s license and re-activate his Social Security number, but there was one minor issue that prevented him from doing it. He was legally dead.

Miller appeared in Hancock County Probate  Court in October 2013 to try to convince judge Allan H. Davis, who ruled him legally dead in 1994. In a 30-minute hearing the judge, quoted by the New York Times said, “I don’t know where that leaves you, but you’re still deceased as far as the law is concerned.” The judge explained that according to Ohio law, a death declaration can’t be reversed after 3 years.

Miller disappeared in the late 1980s leaving without paying thousands of dollars of child support. His ex-wife, Robin Miller, requested the declaration so she could qualify for Social Security benefits for their two daughters.

His ex-wife’s lawyer opposed Miller being declared alive due to the fact that his client might have to pay back the social security payments made to her and her daughter.

She first learned her ex-husband wasn’t dead when he showed up sitting at a picnic table with his girlfriend in front of her home

For any assistance on Probate or Bankruptcy matters, please contact Jeffrey Weinstein Attorney, on 212-693-3737


An executor, appointed by the testator in his/her will has a fiduciary duty
to the heirs of the estate. What can you do when the executor breaches his/her duty?

What are the executor’s obligations?

1. Filing a Probate Petition in Surrogate’s Court.
2. Notifying all heirs and distributes of the filing.
3. Locate all missing heirs if any.
4. Obtain Letters Testamentary.
5. Searching and Locating Estate assets.
6. Preparing an accounting of assets and
distributing the accounting to all heirs.
7. Filing tax returns and paying all taxes and debts of the Estate.
8. Making a distribution of assets in accordance with the will
in a timely manner.

What procedures are available to an heir if the executor fails to perform?

An heir may file a Petition to compel the executor to act. If the executor does not act within the allotted time frame, 30-60 days, typically the heir may make a motion to remove the executor. If granted, the court will appoint the named successor executor. If the will does not provide for a successor, the court may appoint a family member or a Public Administrator to take over the duties to complete the probate and distribute the assets.

You do have remedies if your executor fails to perform his/her fiduciary duties.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com


After many years as a probate lawyer, here are some of the most frequently asked questions:

1. Can a copy of a WILL be probated?

Generally, only the original WILL may be probated. However, if it can be proven that
the original WILL was never revoked and was destroyed AFTER the death of the decedent,
only then could the copy be admitted to probate.

2. Where do you PROBATE an estate?

The estate must be PROBATED in the state and county of the domicile of the decedent.
The domicile is the permanent legal resident of the decedent. If the decedent died
while traveling or temporarily staying in a hospital or nursing home, you must still
probate the estate back in the legal residence.

3. Do children have an automatic right to inherit?

No. A decedent can legally disinherit a child in his/her WILL. Only a spouse has a
statutory right to 1/3 of the decedent’s estate. However, if the decedent dies without
a WILL, children collectively will be entitled to a share of the estate. The child’s
share depends on whether the decedent was survived by a spouse and the number of
children of the decedent.

4. Who can challenge a WILL?

Any interested party may challenge a WILL. An interested party is anyone who would have
inherited if the WILL in question did not exist or was defective . Challengers include
all distributees and anyone named in a prior WILL. Distributees may be spouses,
children, siblings and possibly grandchildren.

5. When does it make sense to create a TRUST?

There are so many practical reasons to create a TRUST. The most popular reason is when
one has property in more than one state. This TRUST would avoid ancillary probate.
A TRUST is critical when one has minor children. There are also obvious tax benefits
for creating a TRUST.

For most information regarding these five questions and any other questions you may have, Please contact me at my office at (212) 693-3737.
Jeffrey Weinstein

How to force an executor to distribute funds to heirs

The executor’s (or administrator’s) primary duty is to liquidate the estate’s assets and distribute money to all beneficiaries named in the will or to distributees if there was no will. There are ways to legally compel an executor to act:
1. After a reasonable time (6-9 months) you can demand that the executor provide an accounting of all estate assets.

2. If the executor does not respond, you can ask the court to issue a citation compelling the executor to file a judicial accounting of all estate assets.

3. If the executor still does not respond, you can as the judge to issue a warrant of commitment. Once issued, the sheriff will arrest the executor and remand him/her to court. The judge can then send the executor to jail for contempt and keep the executor jailed until he/she provides an accurate accounting.

4. Or the judge can revoke Letters Testamentary and replace the executor with another family member or the Public Administrator (PA) to take over the Estate duties.

If you are an heir who is being ignored by the executor or administrator, I can help you.
For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com.

Can A Common Law Spouse Become An Administrator?

Not all family members may become an administrator of a decedent’s estate. The general rule is that a surviving spouse has first priority, followed by surviving adult children.

A common law spouse does not have an automatic right to become an administrator. However, he/she can be appointed as the administrator after the consent of the closest living heirs.

A common law spouse, who is not legally married to the decedent, cannot be appointed administrator.

If a party has a criminal record with a felony conviction, he/she cannot become a fiduciary.

In case no one comes forward to administer the estate, or if no individual is deemed qualified, then the County Public Administrator may be appointed for this purpose.

In many circumstances, the court may require the administrator to obtain a surety bond. If the proposed administrator has bad credit and cannot obtain a bond he/she cannot become an administrator.

When you meet with me, I will be able to assess who in your family may qualify as an administrator.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com.

How to deal with family conflict in Estate Matters

In this modern world of multi marriages, divorces and step children, Will contests and objections to probate are more and more common!!

There are ways to deal with these conflicts to resolve differences without going to trial. The best advice is for parents to do estate planning, which includes preparing a Last Will and perhaps a Trust document. Preparing a personal letter(s) to heirs explaining one’s intention prior to death is an excellent idea but rarely followed.

A Will challenge can be based on three (3) Theories:

1. The will is defective on its face; the will may be missing essential elements.

2. Incapacity, the deceased did not have testamentary capacity to make a will.

3. Undue influence.

A valid Will must be witnessed by two disinterested parties. A challenge of incapacity must be based on medical records and medical conditions at the time the Will was executed. Undue influence is difficult to prove unless a new will was created in favor of a non-family member when the decedent was ill or infirm. When a conflict arises between siblings, a cross petition and or an objection to Probate/Administration may be filed. Extensive discovery proceeding may uncover clues to the decedent’s testamentary intentions.

In many cases, a resolution may be reached in a court supervised settlement conference. I have extensive experience reaching out of court settlement, resolution of disputes between once “close” family members.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com

Who can be appointed administrator of an estate?

Let’s begin with some definitions. When someone dies with a will, the process is called Probate. The individual entrusted with administering the estate is the Executor named in the Will.

If one dies without a will the process is called Administration. The person entrusted with administering the estate is called the Administrator.

Since no written instructions are left behind by the decedent who died without a Will, an administrator must be appointed. This is where matters get complicated!

Who may be appointed is the subject of this article. Frequently, there is a royal battle among family members as to who should be appointed. The administrator wields some power, and may be entitled to be paid for rendering his/her services. Thus, it is desirable to be named administrator.

The SPCA, the NY Surrogates Court Rules lends guidance to who may be appointed Administrator. The SCPA outlines who has priority among family members, assuming that individual can qualify.

If there is a surviving spouse, he/she has first priority. Next come adult children, adult grand children, parents and finally siblings who all have an equal right to be an administrator.

The problem arises if there are multiple children or multiple siblings, who compete for the position. Or, if a child believes that the parent is not qualified due to age or disability to be administrator. This problem is compounded when the surviving spouse is a step parent. When a conflict arises, parties may file cross petition or objections to the appointment.

In conclusion, the appointment of an administrator can be complicated and prolong the Administration process.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com

Why Consider Using a Living Trust?

In the process of making plans to protect one’s family and loved ones upon one’s death, many people have chosen a living trust. Also known as an inter vivos (Latin for “within one’s life”), this type of trust is very flexible.This type of trust is distinguished form a testamentary trust, which is created by a will and only comes into effect at the time of the decedent’s death.

Unlike a will, a living trust has the ability to transfer property after the creator’s death while avoiding probate. Note that this is different from a testamentary trust thus invoking—and not avoiding—the probate process.

In New York under the Estates, Powers, and Trusts Law section 7-1.14, any person, natural or otherwise (e.g., a corporation), may create a living trust. A natural person must be at least 18 years old to do so. Any property, real or personal, may be disposed of through a living trust. The creator of a trust is called a settlor, and a living trust is created and effective during his life. In other words, should a settlor so choose, the beneficiary of a living trust need not wait until the settlor’s death to begin benefiting from it.

To execute a living trust, a settlor must to state its terms in writing. A trustee is a person who is appointed in a trust to oversee the distribution of assets within it. One advantage of a living trust is that its settlor may appoint himself to be the trustee. The execution of a living trust need not be acknowledged nor witnessed unless a third person has been appointed as trustee. This enhances the level of control a settlor has over the property transferred to the living trust.

A living trust only governs the property within the trust itself. It is not sufficient for a person to execute a document stating that certain property is considered to be within the living trust—the property must have been actually transferred to the living trust for it to be considered a part of it. Because the property must be unequivocally placed within the living trust to be subject to it, there is no question that the settlor intended for said property to be in the trust.

Unlike in many other jurisdictions, in New York, a living trust is irrevocable by default, unless otherwise stated in writing. So long as the living trust is properly executed, the settlor need not be concerned with having to state terms of irrevocability; it is assumed that the settlor intended the trust to survive, both during life and in death.

As you can see, there are a lot of little requirements of a living trust you need to comply with. In addition, since living trusts avoid probate, judges strictly construe these requirements.