Wills

Published on: November 20, 2023

Surrogate’s Court considered whether it had the authority to probate a Florida-made where there was estate property in Queens. Matter of Steiner 2023 NY Slip Op 51224(U)

by Stephen Bilkis

When someone who lived elsewhere passes away but owns property in New York, a probate proceeding can be initiated in the Surrogate’s Court in the county where the property is located. SCPA § 206 [1], which grants the Surrogate’s Court jurisdiction over the estate of a non-domiciliary decedent who leaves property in the state. The statute ensures that the legal process unfolds in the county where the non-domiciliary decedent left property, streamlining the handling of assets and the distribution of the estate according to applicable laws.

In Matter of Steiner, 2023 NY Slip Op 51224(U), the decedent lived in Florida at the time of their death, but also had property in New York.

Background Facts

Published on: November 15, 2023

Appellate Division considered whether a objectant had standing to challenge the validity of a will. In Matter of Mancuso, 2006 N.Y. Slip Op. 52151 (N.Y. Surr. Ct. 2006)

by Stephen Bilkis

In New York, having standing to contest a will means having a direct and adverse interest in the probate proceedings. To challenge a will, an individual must demonstrate a pecuniary or financial stake in the estate that would be adversely affected by the will’s admission to probate. Simply being an heir or beneficiary does not automatically grant standing; the potential contestant must show that their rights or inheritance would be directly impacted by the probate of the contested will. The concept of standing ensures that only those with a genuine interest in the outcome can participate in will contests.

In Matter of Mancuso, 2006 N.Y. Slip Op. 52151 (N.Y. Surr. Ct. 2006), the dispute revolved around the denial of probate for Faye Mancuso’s 2000 will and the subsequent objections filed by Michael Pizzi, the will’s proponent, against the probate of an earlier will from 1987.

Background Facts

Published on: July 3, 2023

Surrogate’s Court dismissed objections based on lack of testamentary capacity, finding them to be based on mere surmise. In re Horn 68 Misc. 3d 1217 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In re Horn, 68 Misc. 3d 1217 (N.Y. Surr. Ct. 2020), the dispute revolves around the Last Will and Testament dated January 15, 2019, including a claim related to the testamentary capacity of the testator. Testamentary capacity is crucial in ensuring the validity of a person’s will. It reflects the mental and emotional state of the testator, verifying their ability to comprehend the nature of their assets, understand the consequences of their decisions, and identify rightful beneficiaries. Establishing testamentary capacity safeguards against potential exploitation, fraud, or undue influence. A sound mind during will creation ensures that the document truly represents the individual’s intentions. Without testamentary capacity, the legitimacy of the will may be questioned, leading to legal disputes and jeopardizing the deceased’s final wishes. Thus, testamentary capacity is indispensable for maintaining the integrity of the probate process.

Factual Background

Russell L. Van Horn passed away on January 19, 2019, leaving a contested last will and testament dated January 15, 2019 (the “January 15th Will”). While hospitalized due to cancer at Orange Regional Medical Center, Decedent’s nephew, Kiel Van Horn, drafted a will on January 14, 2019 (the “January 14th Will”), incorporating handwritten changes made by the Decedent. The January 14th Will bequeathed property and assets to family members, including a 1/5 share of the estate residue to Objectant Tammy Long. On January 15, 2019, Kiel Van Horn created the January 15th Will, revoking the previous version. Objectant Long contests the January 15th Will, alleging lack of capacity, duress, undue influence, or fraud.

Published on: January 2, 2023

Medical evidence not sufficient to show lack of capacity. Matter of Estate of Paul Tucker, 2020 NY Slip Op 31604(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Lack of capacity to make a will in New York refers to a situation where the testator (the person making the will) does not have the mental capacity to understand the nature and consequences of his or her actions when executing the will. In order to have the capacity to make a will in New York, the testator must have a general understanding of the nature and extent of his or her property, the natural objects of his or her bounty, and the effect of executing the will. Lack of capacity may result from a variety of factors, including mental illness, dementia, or other conditions that affect cognitive functioning.

In a will contest in New York, medical evidence can be used to prove that the testator lacked the capacity to execute the will. This may involve presenting medical records, expert testimony from treating physicians, or other evidence to establish the testator’s mental state at the time the will was executed. However, just like with any evidence, the court will determine whether it is sufficient.

Background

Published on: October 26, 2022

Surrogate’s Court declined to probate a document that did not meet the requirements of a will. In re the Estate of Wolf, 38 Misc. 3d 564 (N.Y. Sur. Ct. 2012)

by Stephen Bilkis

A will, when properly executed, is a legally enforceable document in which the testator gives instructions as to what is to happen to their property after their death. In this will contest case the Surrogate’s Court has was asked to determine whether a document signed by the decedent was in fact a last will and testament that should be probated.

Under New York law, as in all jurisdictions, there are very specific requirements for a will to be valid. It must be signed by the testator in the presence of two witnesses or a the direction of the testator in their presence. NY EPTL § 3-2.21. With some notable exceptions, the will must also be writing. Further, at the time that they executed the will, the testator must have had the mental capacity to sign the will.

If, as in this case, a will was executed in another jurisdiction, must have been executed in a manner consistent with that jurisdiction. In this case, one of the documents submitted was executed in Pennsylvania.

Published on: April 18, 2022

New York last will and testament failed to meet COVID-related will execution requirements. In re Holmgren (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Holmgren the petitioner, Philip Holmgren, submitted his sister’s will for probate. Even though the will was not contested, because of the novel circumstances surrounding the execution of he will, the Surrogate’s Court, Queens County issued a written opinion as to whether a will that was executed under the temporary COVID-related procedures was legally sufficient.

Requirements for executing a will in New York

For a will to be valid in New York, the law requires that it must be executed in a specific way.

Published on: April 11, 2022

Execution of will satisfied presence requirements under special COVID-related rule. In re Ryan, 71 Misc.3d 217 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

In In re Ryan the petitioner asked the Surrogate’s Court of Broome County to admit a will to probate that was executed under the requirements of special rules that were put into effect to make sure that social distancing requirements where followed.

Requirements for executing a will in New York

In New York, for a will to be valid, it must be executed according to the requirements of New York law. This means that the will must be signed and witnessed.

Published on: April 4, 2022

Holographic will not admitted to probate. In re Koutsakos (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Koutsakos the petitioner asked the Surrogate’s Court of Queen’s County to admit a handwritten will to probate. The will was dated March 18, 2020.

Requirements for executing a will in New York

For a will to be valid in New York, it must be written and executed in the manner required by New York. The rationale for strict requirements is to prevent fraud.

Published on: March 28, 2022

Court determined that will was not revoked. In re Kranz-Marks, 2020 NY Slip Op 50646(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

On August 12, 2018, Kranz-Marks passed away. She left a will dated June 9, 2015. However, the first page of the will had the handwritten word “VOID.” It also included the followed handwritten statements: “Everything will be left to my three daughters: Jessica, Emily, and Erica Marks ONLY!!!” and “My previous will to be executed is with my Aunt Janine Kranz in Wading River.” The testator’s signature was below the statements.

The petitioners argue that the writing on thee 2015 will constitute a revocation of that will under EPTL § 3-4.1(b). They sought to administration of the estate under the laws of intestacy rather than probating the 2015 will. In addition, a 2014 will was submitted to the court by another party along with a petition for that will to be probated.

Among other things, the Surrogate’s Court of Orange County had to determine whether the 2015 will was effectively revoked.

Published on: January 18, 2021

Surrogate’s Court considered whether a Military Testamentary Instrument should be admitted to probate. In re Johnson, 69 Misc.3d 357 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

A military testamentary instrument is sometimes called a “military will.” It is a last will and testament as described by federal statute 10 USCS § 1044d. It can be executed only by or on behalf of a person who is eligible for military legal assistance. Like any other type of will, for a military testamentary instrument to valid, certain formalities must have been present at the time it was executed. It must be executed by the testator in the presence of a military legal assistance counsel acting as presiding attorney and in the presence of two witnesses. Like a will, it takes effect upon the death of the testator. It has the same effect as a will that was prepared and executed according to the laws of the state in which it is presented for probate.

In In re Johnson, the wife of decedent Johnson filed a petition for probate along with a military testamentary instrument purporting to be Johnson’s last will and testament. For an instrument to be admitted to probate, the general rule is that it is up to the proponent to prove that the document complies with the requirements of New York law. Under EPTL § 3-2.1(a), for a will to be valid, the requirements are:

The testator must have signed the instrument at its end