Testamentary Capacity and the Forgotten Child: Matter of Timer скачать в хорошем качестве

Testamentary Capacity and the Forgotten Child: Matter of Timer

In this video, we discuss the case of Matter of Timer, which addresses whether a child being omitted completely from a last will and testament demonstrates lack of testamentary capacity and undue influence. A must-watch for elder law and estate planning attorneys, persons drafting and executing their wills, administrators of estates, family and beneficiaries of deceased persons, and anyone interested in real civil cases. Case Name: Matter of Timer Citation: 2023 NY Slip Op. 05565 (https://casetext.com/case/in-re-estat...) Publication Date: 11/02/23 Issue: Omitted child from a will and the impact on testamentary capacity and undue influence. Key Parts of the Decision: Overall Issue: "After petitioner commenced this proceeding to admit decedent's will to probate, respondent - one of decedent's two surviving children - filed objections, alleging that decedent lacked testamentary capacity at the time of the will's execution and that petitioner exercised undue influence over decedent." Overall Holding: "We affirm. Initially, we are unpersuaded by respondent's contention that Surrogate's Court erred in dismissing her objection to probate based upon lack of testamentary capacity. In that respect, petitioner had the burden of demonstrating "that decedent understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his bounty, and his relationship to them" (Matter of Prevratil, 121 A.D.3d 137, 140 [3d Dept 2014] [internal quotation marks, brackets and citation omitted]; accord Matter of Linich, 213 A.D.3d 1, 4 [3d Dept 2023]; see Matter of Kumstar, 66 N.Y.2d 691, 692 [1985]). "[T]he appropriate inquiry is whether... decedent was lucid and rational at the time the will was made" (Matter of Walker, 80 A.D.3d 865, 866 [3d Dept 2011] [internal quotation marks and citations omitted], lv denied 16 N.Y.3d 711 [2011]; accord Matter of Burrows, 203 A.D.3d 1699, 1700 [4th Dept 2022], lv denied 39 N.Y.3d 903 [2022]; see Matter of Dralle, 192 A.D.3d 1239, 1241 [3d Dept 2021]), and "[a] presumption of testamentary capacity is created when an attorney drafts a will and supervises its execution." "In our view, the testimony of both the supervising attorney and the paralegal created a presumption of testamentary capacity (see e.g. Matter of Scaccia, 66 A.D.3d 1247, 1250-1251 [3d Dept 2009]; Matter of Ruparshek, 36 A.D.3d 998, 999 [3d Dept 2007]). Although respondent emphasizes that she was not mentioned in the will - arguing that this is evidence that decedent did not know the natural objects of his bounty - the failure to expressly disinherit respondent does not undermine decedent's testamentary capacity, particularly where, as here, decedent named his nephew as a second beneficiary in the event petitioner did not survive decedent and expressly disinherited Borne (see Matter of Van Horn, 68 Misc.3d 1217 [A], 2020 NY Slip Op 50977[U], *4 [Sur Ct, Orange County 2020]; Matter of Fiorentino, 65 Misc.3d 1236 [A], 2019 NY Slip Op 52012[U], *3 [Sur Ct, Queens County 2019]). This specificity indicates that decedent understood the individuals who were the natural objects of his bounty and made a deliberate choice in how he was distributing his estate." "As for respondent's claim of undue influence, it was respondent's burden, as the objectant, to show that petitioner's actions were "so pervasive that the will [wa]s actually that of [petitioner], not that of... decedent" (Matter of Prevratil, 121 A.D.3d at 142 [internal quotation marks and citations omitted]; accord Matter of Linich, 213 A.D.3d at 5; see Matter of Mary, 202 A.D.3d 1418, 1419 [3d Dept 2022]). The influence exercised must rise to the level of "a moral coercion" (Matter of Prevratil, 121 A.D.3d 142 [internal quotation marks and citation omitted]) imposed upon one who is too weak, infirm or fearful to resist the underlying manipulation and exploitation (see Matter of Mary, 202 A.D.3d at 1419-1420). "The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence" (Matter of Linich, 213 A.D.3d at 5 [internal quotation marks and citations omitted]; see Matter of Turner, 56 A.D.3d 863, 866 [3d Dept 2008]; Matter of Malone, 46 A.D.3d 975, 977 [3d Dept 2007]). "Absent specificity as to times, dates and places, conclusory allegations and speculation are insufficient to raise an issue of fact as to acts of undue influence" (Matter of Turner, 56 A.D.3d at 865-866 [internal quotation marks and citations omitted]; see Matter of Dralle, 192 A.D.3d at 1243). "Although undue influence may be proven through circumstantial evidence, such evidence must be of a substantial nature." #lawtalk #elderlaw #lawyer #attorney #law #civillaw