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