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1
The Fall-Out: Litigating Capacity After
The Death of the Alleged "Incapacitated"
By Eric W. Penzer
Overview
This outline addresses some of the more common judicial proceedings in which a
decedent’s capacity may be at issue. Among the topics addressed are contested probate
proceedings, proceedings to determine the validity of lifetime trusts, proceedings involving
lifetime gifts, and proceedings involving the execution of other documents, including powers of
attorney, deeds, and beneficiary designations, as well as applicable presumptions and burdens of
proof.
1. Contested Probate Proceedings
a. Capacity required to execute a will
i. Testamentary capacity is the lowest acceptable level of cognitive ability
required by law -- lower than contractual capacity.
1. In re Seagrist’s Will, 1 AD 615, 620 (1st Dept 1896), aff’d, 153 NY
682 (1897): “The same clearness of comprehension and ability of
expression which is required to enable a man to enter into a contract
need not exist to enable him to make a valid will.”
2. Clapp v Fullerton, 34 NY 190, 197 (1866): “The right of a testator to
dispose of his estate, depends neither on the justice of his prejudices
nor the soundness of his reasoning. He may do what he will with his
own; and if there be no defect of testamentary capacity, and no undue
influence or fraud, the law gives effect to his will, though its
provisions are unreasonable and unjust.”
3. In re Delmar’s Will, 243 NY 7, 10-11 (1926): “The law jealously
guards the right of a person to dispose of his property by will,
whatever his condition of health may be, but there comes a time when
the ordinary death-bed will, prepared when the testator is sinking
slowly but surely to his end, must be submitted to careful scrutiny to
determine whether it indeed meets the tests of testamentary capacity.”
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ii. As stated in Matter of Kumstar, 66 NY2d 691, 692 (1985), and numerous
other cases, in order to make a will the testator must have:
1. understood that she was making a will and the scope of its dispositive
provisions;
2. knew and understood the nature and extent of her assets; and
3. knew those who would be considered the natural objects of her bounty
and her relations with them.
iii. “‘While a court must look to [the three prongs of the Kumstar text] when
considering capacity ... they are but rough guides’ and each case must be
decided upon its particular facts and circumstances” (In re Will of Khazaneh,
15 Misc 3d 515, 522 n.17 [Sur Ct, NY County 2006], quoting 2B Warren’s
Heaton, Surrogates Courts § 186–c[1][c] at 32–238 [6th ed.]).
iv. Capacity is measured at precise time of execution (see Matter of Williams, 13
AD3d 954 [3d Dept 2004]; Matter of McCloskey, 307 AD2d 737 [4th Dept
2003]).
1. Evidence relating to the condition of the testator before or after the
execution is significant, but only “insofar as it bears upon the strength
or weakness of mind at the exact hour of the day of execution” (id.).
a. See Matter of Partridge, 141 Misc 2d 159, 159-60 (Sur Ct,
Rockland County 1988) (expanding scope of discovery in
probate proceeding pursuant to 22 NYCRR § 207.27 to
encompass tape recordings of conversations between objectant
and decedent occurring six to nine months prior to will’s
execution; “The court finds that the contentions raised by
petitioner constitute special circumstances to enable petitioner
to utilize the tape recordings at an examination before trial.”).
v. A testator must only experience a “lucid interval” of adequate capacity to
execute a valid will, and that interval “can occur even contemporaneously
with an ongoing diagnosis of dementia . . . or even incompetency” (Matter of
Petix, 2007 WL 1532288, at *4 [Sur Ct, Monroe County May 29, 2007]).
1. “[O]ld age, physical weakness and senile dementia are not necessarily
inconsistent with testamentary capacity as long as the testatrix was
acting rationally and intelligently at the time the [instrument] was
prepared and executed” (Hedges, 100 AD2d 586, 588 [2d Dept 1984],
appeal dismissed 63 NY2d 944 [1984]).
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2. “With respect to persons of unsound mind having lucid intervals, it is
sufficient if the evidence adduced in support of the will shall establish
that the party afflicted had intermissions, and that there was an
intermission at the time of the act” (In re Greeley’s Will, 15 Abb Pr
NS 393, 401 [Sur Ct, Westchester County 1873]).
b. Burden of proving capacity
i. The will proponent has the burden of proving that testator possessed sufficient
capacity (see Matter of Kumstar, 66 NY2d at 692).
ii. However, “[a]s a general rule and until the contrary is established a testator is
presumed to be sane and to have sufficient mental capacity to make a valid
will” (In re Beneway’s Will, 272 AD 463, 467 [3d Dept 1947]).
1. As Surrogate Anderson noted in Matter of Roberts, 34 Misc 3d
1213(A), 2011 WL 7069561, at *2 (Sur Ct, NY County Dec. 5, 2011),
the proponent’s burden of proving capacity “is eased by the law’s
presumption that a testator has the capacity to execute a testamentary
instrument.”
c. Proving capacity
i. The proponent’s burden can often be satisfied through self-proving affidavits.
1. A self-proving affidavit “constitutes prima facie evidence of the facts
attested to therein by the witnesses” (Matter of Schlaeger, 74 AD3d
405, 407 [1st Dept 2010] [“Proponent met his burden of establishing
the decedent’s testamentary capacity with the self-proving affidavit of
the attesting witnesses stating that the decedent was of ‘sound mind,
memory and understanding” and was not incompetent]).
a. Such affidavits often recite, in sum and substance, that the
testator was “of sound mind, memory and understanding” and
“not suffering from any defect of sight, hearing, or speech, or
from any other physical or mental impairment which would
affect his capacity to make a valid Will.”
2. However, “something more” may be required where a testator is of
impaired capacity.
a. Authority establishes that the presumption of regularity may be
insufficient to prove the validity of a will where a testator is of
impaired capacity – mental or physical.
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i. In Weir v Fitzgerald, 2 Bradf. 42, 68-69 (1851)
(testator’s vision impaired; presumption of regularity
insufficient to prove validity of will), the Court of
Appeals stated that “[s]omething more is necessary to
establish the validity of the will in cases where, from
the infirmities of the testator, his impaired capacity, or
the circumstances attending the transaction, the usual
inference cannot be drawn from the mere formal
execution. Additional evidence is therefore required
that the testator’s mind accompanied the will, that he
knew what he was executing, and was cognizant of the
provisions of the will.”
ii. Citing Weir, the Court applied this principal again, in
Matter of Creekmore, 1 NY2d 284 (1956), where it was
called upon to determine the validity of an instrument
creating a joint bank account between the decedent and
her daughter, established at a time when the decedent
was fatally ill.
iii. The rule has been applied most often to physical
infirmities -- blindness and deafness.
1. See, e.g., In re Regan's Will, 206 AD 403, 406
(2d Dept 1923) (collecting authority and stating:
“It seems to me that there is no evidence in the
record upon which the learned surrogate could
reach the conclusion that the paper in question
was read to the decedent, or that its terms and
conditions were disclosed to her prior to the
making of her mark. I do not say that it is
necessary to prove these precise facts in all
cases, but in the case of an illiterate testator who
cannot read or write there must be something
more than the mere fact that the testator affixed
his mark to the will.”).
2. See also In re Alfaya’s Will, 122 Misc 771, 774
(Sur Ct, Westchester County 1924) (“In the case
of persons who are ill, or otherwise disabled, as
well as in cases of illiteracy, there is no
presumption that the testator knew what he was
doing, but the knowledge of the contents of a
will and the character of the paper have to be
proven”).
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iv. More recently, Judge Radigan applied the “something
more” requirement -- and determined that it was
satisfied -- in Matter of Richtman, 1994 WL 16854449
(Sur Ct, Nassau County April 26, 1994) (“Ordinarily
when a will is duly executed, the fact of such execution
is sufficient proof that the instrument speaks the
testator’s language and expresses his will, but when a
testator is under some disability such as illness or
inability to read or write and speak, something more is
demanded. There must then be proof not only of the
factum of the will but also that the instrument expresses
his intention”)
ii. Testimony of attesting witnesses
1. In contrast to the rule applicable to lay witnesses generally, attesting
witnesses to a will are permitted to testify whether a person was of
sound or unsound mind (see Prince, Richardson on Evidence § 7–
202[m] [Farrell 11th ed.], cited in Crawn v Sayah, 31 AD3d 367, 369
[2d Dept 2006]).
iii. Expert witness testimony
1. While the opinions of non-treating expert physicians are admissible,
they are generally afforded very little weight.
a. See Matter of Slade, 106 AD2d 914, 915 (4th Dept 1984)
(“Proponents’ reliance on the testimony of Dr. Caine in favor
of the testatrix’s testamentary capacity is misplaced. The
doctor did not see or examine her and did not discuss her
condition with any of her attending physicians or nurses. He
only reviewed her medical records. Such testimony is the
weakest and most unreliable kind of evidence.”).
b. See Matter of Estate of Buchanan, 245 AD2d 642, 646 (3d
Dept 1997) (“Moreover, the psychiatrist’s testimony was based
almost exclusively upon decedent’s medical records and was
thus ‘the weakest and most unreliable type of evidence’”
[citation and quotation marks omitted]).
2. Such evidence, standing alone, has been held insufficient to warrant
denial of summary judgment in a proponent’s favor.
a. Matter of Kumstar, 66 NY2d 691, 692 (1985): “Here, there
was insufficient evidence adduced at trial to warrant submitting
that issue to the jury. The subscribing witnesses and those who
6
were close to decedent when the will was drafted each testified
that decedent was alert and capable of understanding the nature
of her actions. Decedent’s treating physician testified that it
was his opinion, based on a reasonable degree of medical
certainty, that decedent was competent when she signed the
will. By contrast, a physician called by the objectant who
reviewed decedent’s medical records was unable to state with a
degree of medical certainty that decedent was incompetent at
the time in question.”
b. Matter of Estate of Van Patten, 215 AD2d 947, 948 (3d Dept
1995): “When the proponent of a will meets the burden of
establishing testamentary capacity with evidence which
demonstrates that the testator understood the nature and
consequences of executing a will, knew the nature and extent
of the property disposed of by the will, and knew those who
would be considered the natural objects of his bounty and his
relations with them, the testimony of an objectant’s expert who
has reviewed the testator’s medical records and is unable to
state with a degree of medical certainty that the testator was
incompetent is insufficient to warrant submission of the issue
to the jury.”
iv. Recording of execution ceremony as proof of capacity
1. Provided a proper foundation is established, recordings of the
decedent’s execution of the will are generally admissible as proof of
testamentary capacity
a. See Matter of Burack, 201 AD2d 561, 561 (2d Dept 1994)
(“Contrary to the appellants’ contention, the trial court did not
improvidently exercise its discretion by admitting into
evidence a videotape of the will execution. The videotape was
not offered in an attempt to probate the document as a will;
rather, it was offered as evidence of the decedent's
testamentary capacity. A proper foundation was laid; the three
witnesses to the will execution and the attorney who supervised
the will execution testified that the videotape was a fair and
accurate depiction of the events which were filmed. Moreover,
the attorney who supervised the will execution also testified
extensively as to the chain of custody of the videotape and
testified that the tape did not appear to have been tampered
with” [citations omitted]).
b. See In re Estate of Makitra, 101 AD3d 1579, 1580-81 (4th
Dept 2012): “Here, there was ample evidence that decedent
7
was of sound mind and memory when he executed his
November 2007 will. Aside from the trial testimony of several
disinterested witnesses to that effect, petitioner’s lawyer
introduced in evidence at trial a videotape that was made of
decedent as he reviewed and signed the will. The tape was
reviewed by the Surrogate before she rendered her decision.
Based upon our review of the record, including the videotape,
we perceive no reason to disturb the Surrogate’s findings,
which are entitled to great weight inasmuch as they hinged on
the credibility of the witnesses” (citations omitted).
c. See Matter of Scher, 137 AD2d 605 (2d Dept 1988) (appeal
from grant of petitioner’s motion for judgment during trial as a
matter of law admitting will to probate): “The decedent, an 89-
year-old blind woman, executed a will in an attorney’s office in
the presence of three subscribing witnesses. The entire
execution of the will was tape-recorded. The tape affirmatively
demonstrated the decedent’s testamentary capacity; to wit: she
knew the nature and extent of her property; she named the
natural objects of her bounty, her children and grandchildren;
and she stated her reason for leaving her house to one daughter
and providing a $1,000 bequest to each of the others, rather
than dividing her estate equally.”
v. Explanatory writing by decedent
1. In re Estate of Feller, 26 Misc 3d 1205(A), 2010 WL 10954 (Sur Ct,
Monroe County Jan. 4, 2010): “Here, the proponent has offered a
prima facie case of requisite testamentary capacity. The decedent
herself sought out the services of proponent to have him draft her last
will and testament. She met with him for that purpose with specific,
detailed notes of how she wanted her estate devised. . . . In fact, when
decedent reviewed proponent’s draft of her will, she made changes to
it adding accurate addresses and a middle name of a residuary
beneficiary, which in the Court’s view is further indicia of her
capacity.”
d. Right to jury trial
i. The right to a jury trial is provided by statute (SCPA 502[1]).
1. Court may still direct verdict at trial if evidence insufficient to support
jury’s determination (see Matter of Slade, 106 AD2d 914 [4th
Dept1984] [affirming grant of contestants’ motion for directed verdict
on issue of lack of testamentary capacity, renewed after the jury’s
8
verdict finding, inter alia, that decedent possessed testamentary
capacity]).
e. Federal courts
i. Actions that require determinations concerning a decedent’s mental capacity
may be litigated in federal courts where, for example, diversity jurisdiction
exists.
1. See, e.g., Sun Life Assur. Co. of Can. (U.S.) v Gruber, 05 CIV. 10194
(NRB), 2007 WL 4457771, at *14-15 (SD NY Dec. 14, 2007) (federal
interpleader action commenced by insurance company concerning
three competing beneficiary designations), affd sub nom. Sun Life
Assur. Co. of Can. v Gruber, 334 Fed Appx 355 (2d Cir 2009).
ii. However, in accordance with the “probate exception” to federal diversity
jurisdiction, a federal court will not probate a will, administer a decedent’s
estate, or entertain an action seeking to dispose of property in the custody of a
state probate court.
1. See Marshall v Marshall, 547 US 293, 311-12 (2006) (“Thus, the
probate exception reserves to state probate courts the probate or
annulment of a will and the administration of a decedent’s estate; it
also precludes federal courts from endeavoring to dispose of property
that is in the custody of a state probate court. But it does not bar
federal courts from adjudicating matters outside those confines and
otherwise within federal jurisdiction.”).
2. Proceedings To Invalidate Lifetime Trusts
a. Context in which determination may be made
i. Stand-alone action/proceeding
1. See, e.g., In re Tognino, 87 AD3d 1153 (2d Dept 2011) (proceeding to
contest the validity of amendments to decedent’s living trust); In re
Ranaldo, 104 AD3d 857, 857 (2d Dept 2013) (appeal from
determination in “simultaneous” trial of contested probate proceeding
and related proceeding, inter alia, to invalidate an amendment to a
trust); In re Doman, 68 AD3d 862, 863 (2d Dept 2009) (proceeding to
invalidate Qualified Personal Residence Trust); Gregory v Wilkes, 26
Misc 2d 641 (Sup Ct, NY County 1960) (proceeding to set aside
provision of trust instrument as invalid on grounds of fraud and undue
influence).
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ii. Discovery/turnover proceeding
1. See Matter of Davidson, 177 Misc 2d 928, 932 (Sur Ct, NY County
1998) (“The fiduciary may choose to bring an action to rescind the
trust or may commence a discovery proceeding to obtain information
needed to determine whether there are assets of the estate contained in
such a trust or to reclaim for the estate assets held by the trustee.”).
2. See In re DelGatto, 98 AD3d 975 (2d Dept 2012) (SCPA 2103
proceeding seeking turnover of house decedent deeded to lifetime
trust; petitioner alleged that decedent executed the trust while not
mentally competent and subject to undue influence).
iii. Guardianship proceeding (pre-death)
1. Mental Hygiene Law § 81.29 authorizes court to modify, amend, or
revoke, inter alia, any previously executed contract, conveyance, or
disposition during lifetime or to take effect upon death, made by the
incapacitated person prior to the appointment of the guardian while the
person was incapacitated.
a. See In re Rita R., 26 AD3d 502, 503 (2d Dept 2006) (affirming,
as modified, court’s invalidation, pursuant to MHL § 81.29(d),
of various legal instruments executed by alleged incapacitated
person, including various trusts and amendments).
i. Notably, in Rita R., the Second Department modified
order to invalidate will executed during period of
incapacity; prior to amendment of statute prohibiting
such a determination.
1. By amendment to statute effective 2008, the
statute expressly prohibits courts from
invalidating or revoking a will or a codicil of an
incapacitated person during the lifetime of such
person.
b. See Matter of Nicoll, 191 AD2d 444, 444 (2d Dept 1993)
(proceedings pursuant to Mental Hygiene Law article 77 for
the appointment of a conservator and for the nullification of a
trust agreement executed by the proposed conservatee).
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iv. Accounting Proceeding
1. See Matter of Donna Lee Beanland Trust, Sur Ct, Suffolk County,
April 5, 2015, Czygier, J., File No. 2009-607/A (determining validity
of amendment/restatement of trust in the context of trust accounting
proceeding).
b. Standing to maintain proceeding to invalidate lifetime trust
i. See SCPA 103(39) (“Person interested. Any person entitled or allegedly
entitled to share as beneficiary in the estate or the trustee in bankruptcy or
receiver of such person.”).
1. Only a person who has “a pecuniary interest to protect, either as an
individual or in a representative capacity” has standing to prosecute a
claim (see Matter of Davis, 182 NY 468 [1905]). An interest “resting
on sentiment or sympathy, or on any basis other than the gain or loss
of money or its equivalent” will not suffice (id.).
ii. Those with standing to maintain a proceeding to invalidate a lifetime trust
include:
1. A distributee of the grantor’s estate (see In re Heumann, 2006 WL
6897055 [Sur Ct, Westchester County Sept. 25, 2006]; Matter of
Davidson, 177 Misc 2d 928, 931 [Sur Ct, NY County 1998]);
2. The fiduciary of the grantor’s estate, including:
a. Executor/administrator ; and
b. Person to whom limited letters have issued pursuant to SCPA §
702 (see Matter of Davidson, 177 Misc 2d at 932 (“Where a
fiduciary will not pursue such relief on behalf of decedent's
estate, the court may appoint a second fiduciary to carry out
those duties that decedent’s nominee is unable or unwilling to
perform.”).
c. Capacity required to execute trust
i. Courts have examined whether the lower testamentary capacity or higher
contractual capacity is required to execute a trust.
1. Contractual capacity is lacking where the party is “wholly and
absolutely incompetent to comprehend and understand the nature of
the transaction’” (Ortelere v Teacher's Retirement Board, 25 NY2d
196, 202 [1969] [citation and quotation marks omitted]).
11
a. The relevant inquiry is whether the party was capable of
making “a rational judgment concerning the particular
transaction” (id. at 203).
ii. The first New York court to address the standard of capacity required to create
a lifetime trust was Matter of ACN, 133 Misc 2d 1043 (Sur Ct, NY County
1986) (determining that contractual capacity required to execute irrevocable
trust).
1. ACN involved an irrevocable trust, a charitable remainder unitrust, and
the parties disagreed on the standard of capacity to be applied. The
court determined that it would look to analogous transactions for
guidance.
2. It noted that “[a] will, by nature, is a unilateral disposition of property
whose effect depends upon the happening of an event in futuro. A
contract is a bilateral transaction in which an exchange of benefits,
either present or deferred, is exchanged” (id. at 1047).
3. The court determined that the standard for contractual capacity would
apply, as “[a] charitable remainder unitrust is a bilateral transaction
between the settlor and trustee in which the settlor transfers a present
interest in property in return for an annual fixed percentage of income
based on the fair market value of the corpus (and a tax deduction). As
such, it is more analogous to contract than to a will” (id.).
iii. Courts have also applied the contractual capacity standard to revocable trusts
as well.
1. See Matter of Donaldson, 38 Misc 3d 841 (Sur Ct, Richmond County
2012) (“It is abundantly clear after reviewing the documents executed
by the Decedent that they are more comparable to a contract and
therefore require a higher mental capacity than that of a will.”).
a. Notably, the decision in Donaldson does not reveal whether the
subject trust was revocable or irrevocable; research has
confirmed that it was a revocable trust.
2. See Estate of Edson, 7/14/97 NYLJ 31 (col. 1) (Sur Ct, Suffolk
County) (to create a valid inter vivos trust, the grantor must have
possessed an intelligent understanding of the contents of the trust
agreement).
3. See Estate of Roth, NYLJ 9/15/06, at 33 (col. 1) (Sur Ct, Suffolk
County) (“While there is some authority for the proposition that the
12
level of capacity for the execution of a trust agreement should be the
same as that required for the execution of a will, it has been accepted
that contractual capacity, an ability to comprehend and understand the
nature of the trust agreement and any amendments thereto, is required
for the execution of a trust instrument” [citing Aronoff, infra, and
Edson]).
iv. However, authority exists suggesting that the lower, testamentary capacity
standard, should apply to revocable trusts.
1. In Matter of Aronoff, 171 Misc 2d 172, 177 n.6 (Sur Ct, NY County
1996), the court addressed the right to a jury trial in a proceeding to
determine the validity of a revocable trust (an issue discussed
separately below).
a. Citing ACN, the court noted that “[t]he level of capacity
required to avoid set aside of a will is lower than that required
to avoid set aside of an irrevocable trust on the same grounds”
(id. [citation omitted]).”
b. It noted, in dicta, that “[t]here appears to be no controlling
authority as to which standard should apply to a revocable
trust, although persuasive authority suggests that the will
standard ought to apply to revocable trusts” (id., citing
Restatement [Third] of Trusts § 11 [2] [Tentative Draft No. 1]).
2. In Matter of Estate of Tisdale, 171 Misc 2d 716, 721 (Sur Ct, NY
County 1997), the court also addressed the right to a jury trial in trust
contest, noting the “substantial similarity between revocable trusts and
wills (and the illusory concept of a revocable trust as a contract).”
3. Restatement (Third) of Trusts § 11 (Capacity of a Settlor to Create a
Trust) provides that “[a] person has capacity to create a revocable inter
vivos trust by transfer to another or by declaration to the same extent
that the person has capacity to create a trust by will.”
4. The “6th Report”
a. In May of 2012, the EPTL-SCPA Legislative Advisory
Committee sent its 6th Report to the New York State
Legislature, recommending that the Legislature enact the
Uniform Trust Code (UTC), as modified.
b. Section 7-A-6.1., titled “CAPACITY OF SETTLOR OF
REVOCABLE TRUST” provides as follows: “The capacity
required to create, amend, revoke, or add property to a
13
revocable trust, or to direct the actions of the trustee of a
revocable trust, is the same as that required to make a will.”
d. Burden of proof
i. “The general rule is that the burden of proof in a proceeding to set aside a trust
instrument is upon the objecting party as to all issues, including the issue of
mental competency” (In re DelGatto, 98 AD3d 975 [2d Dept 2012]).
1. Compare with probate proceedings where the will proponent has the
burden of proving that testator possessed sufficient capacity (see
Matter of Kumstar, 66 NY2d at 692).
e. Right to jury trial
i. In Matter of Aronoff, 171 Misc 2d 172 (Sur Ct, NY County 1996), and Matter
of Estate of Tisdale, 171 Misc 2d 716, 721 (Sur Ct, NY County 1997), the two
New York County Surrogates at the time reached different determinations
regarding the right to a jury trial in proceedings to determine the validity of
revocable lifetime trusts.
ii. But in 2003, SCPA 502(1) was amended to grant a right to a jury trial in a
proceeding to contest the validity of a revocable lifetime trust.
1. The right only applies in a proceeding commenced after the death of
the creator of the trust and only if “a controverted question of fact
arises.”
2. The amendment also emphasizes that any right to a jury trial granted
under SCPA 502(1) must be “duly demanded.”
3. “Gift” Litigation
a. Context in which capacity to make gift may be raised
i. Accounting proceeding
1. See In re Gordon's Estate, 17 AD2d 165 (1st Dept 1962) (estate
accounting proceeding; reversing Surrogate’s determination after trial
upholding gifts decedent allegedly made to administrator).
a. “On the record as a whole, it is not clear that the mental
condition of the decedent was such on the precise occasions of
the alleged giving that she was capable of formulating and
carrying out an intent to presently divest herself of ownership
of the several items” (id. at 167).
14
2. See In re Silverman, 17 Misc 3d 1103(A), 2007 WL 2792153 (Sur Ct,
Kings County Sept. 13, 2007) (objectant in accounting proceeding
challenged validity of Totten trusts decedent created when he allegedly
lacked capacity).
ii. SCPA 2103 proceeding
1. See Matter Clines, 226 AD2d 269, 269 (1st Dept 1996) (executor of
estate sought to recover $250,000 in assets in possession of decedent’s
niece; niece maintained that property was gifted; executor contended,
inter alia, that decedent lacked the mental capacity to make such a
gift).
2. See Matter of Mirsky, 154 Misc 2d 278 (Sur Ct, Bronx County 1992)
(administrator of estate brought discovery proceeding seeking to
recover funds withdrawn from decedent’s bank accounts; court
determined that evidence was insufficient to establish that money
withdrawn were valid gifts).
iii. Guardianship proceeding
1. See MHL § 81.43 (“To the extent that it is consistent with the authority
otherwise granted by the court a guardian may commence a
proceeding in the court which appointed the guardian to discover
property withheld”).
2. See Frank A.L. v Vaccarelli, 117 AD3d 740, 741 (2d Dept 2014)
(guardian of incapacitated person commenced proceeding to recover
property in possession of person’s sisters; “Here, the determination
that Rose did not have the mental capacity to voluntarily transfer or
gift her assets to the sisters is warranted by the facts”).
b. Capacity required to make gift
i. The capacity required to make an inter vivos gift is the same capacity required
to enter into a contract.
1. This is consistent with the Matter of ACN “unilateral v. bilateral”
analysis, inasmuch as “[a] gift is a bilateral transaction and demands a
donee as well as a donor” (Porter v Commr. of Internal Revenue, 60
F2d 673, 674 [2d Cir 1932], aff’d, 288 US 436 [1933]).
a. See Rudolf Nureyev Dance Found. v Noureeva-Francois, 7 F
Supp 2d 402, 416 (SD NY 1998) (applying “more rigorous
contract standard for mental capacity” to gifts)
15
b. See Whalen v Harvey, 235 AD2d 792, 794 (3d Dept 1997)
(Plaintiff also alleges decedent’s lack of capacity and
defendant's undue influence. The evidence submitted by
defendant, however, demonstrated that decedent was mentally
alert despite his physical impairment and fully comprehended
the nature of the transaction.”).
c. See In re Bassin, 28 AD3d 549, 550 (2d Dept 2006) (“Further,
clear and convincing evidence established that the decedent
made a valid inter vivos gift . . . or, more specifically, that the
decedent was alert and aware, and understood the nature of the
transaction at the time she executed the deed”).
d. See In re Rinchiuso’s Estate, 20 AD2d 254, 255 (4th Dept
1964), affd, 15 NY2d 865 (1965) (proceeding by administrators
of estate to recover moneys withdrawn from decedent’s bank
accounts by respondents).
i. Id. at 255 (citations omitted): “The mental competency
of decedent has been established by the aid of the
inference which arises that a person is competent unless
there is some proof to the contrary; and by the
testimony of witnesses . . . Peterson and Runfola.
Peterson, who saw her three or four times a week
before and after the alleged gift was made, testified:
‘she always talked clearly to me.’ Lawyer Runfola,
who talked with decedent two days after the date of the
alleged gift, testified: ‘She looked at me when she
discussed this matter, and here was a woman that told
me she remembered my father. She picked me out, and
told me where my family lived. There was nothing
wrong with her.’ This evidence sufficiently established
decedent's mental capacity.”
e. See In re Kiley’s Estate, 197 Misc 36 (Sur Ct, Westchester
County 1949) (discovery proceeding brought to recover
proceeds of bank account).
i. Id. at 38-39: “The evidence satisfactorily established
that decedent was competent to make a gift. The
hospital records indicating a poor or weakened physical
condition and the occasional irrationality of decedent
fail to establish lack of mental capacity at or about the
time the alleged gift was made. On the contrary, the
circumstances surrounding the alleged gift and the
16
manner in which decedent regained custody of the
passbook and selected from several passbooks that
which was to symbolize the subject of the gift, the clear
expression of intent to make the gift, accompanied by
the instruction that the passbook should be taken to a
designated person at the bank, clearly reveal her
subjective mental condition at the time the gift is
alleged to have been made.”
c. Burden of proof
i. A donee bears the burden of proving all elements of a valid gift by clear and
convincing evidence.
1. “In an action to recover property transferred as a gift the donee bears
the burden of proving by clear and convincing evidence that the gift
was voluntary and understandingly made by the donor, uninfluenced
by fraud, duress or coercion” (Clines, 226 AD2d at 270).
2. “Inasmuch as decedent can no longer give his version of the
transactions, respondent had the burden of establishing all of the
elements of each gift by clear and convincing evidence, including that
the deceased donor had the capacity to make a gift” (Mirsky, 154 Misc
2d at 280 [citations omitted]).
ii. Additional burden where donor and donee in a fiduciary/confidential
relationship
1. Where there was a fiduciary or confidential relationship between the
donor and the donee, there is a presumption of undue influence that
must be overcome by clear and convincing evidence.
a. See Gordon v Bialystoker Ctr. and Bikur Cholim, Inc., 45
NY2d 692, 698 (1978) (“where a fiduciary relationship exists
between parties, ‘transactions between them are scrutinized
with extreme vigilance, and clear evidence is required that the
transaction was understood, and that there was no fraud,
mistake, or undue influence. Where those relations exist there
must be clear proof of the integrity and fairness of the
transaction, or any instrument thus obtained will be set aside,
or held as invalid between the parties’” (citing Ten Eyck v
Whitbeck, 156 NY 341, 353 [1898]).
b. See Estate of Schneiderman, 105 AD3d 602, 602 (1st Dept
2013) (“Defendant served as decedent's attorney on personal
and corporate matters for more than 40 years and thus held a
17
fiduciary relationship with decedent. Defendant therefore had
the burden of proving by clear evidence that there was no fraud
or undue influence in connection with decedent's gift of $1
million, made weeks before his death at the age of 82, and
deposited in a trust account held jointly by decedent and
defendant, clearly for defendant's benefit”).
c. See In re Estate of Nealon, 104 AD3d 1088, 1088-89 (3d Dept
2013) (“Under the doctrine of constructive fraud, where a
confidential relationship exists between two parties to a
transaction such that they were dealing on unequal terms due to
one party’s weakness, dependence or trust justifiably reposed
upon the other and unfair advantage is rendered probable, the
burden of proof with respect to allegations of undue influence
will be shifted to the stronger party to show, by clear and
convincing evidence, that no undue influence was used”
[citations omitted]), affd, 22 NY3d 1045 (2014).
4. Power of Attorney Litigation
a. Context in which issue of principal’s capacity may be raised
i. Guardianship proceeding (pre-death)
1. Guardianship courts have authority to revoke a variety of instruments,
including powers of attorney.
2. The courts are also authorized to revoke any contract, conveyance, or
disposition made by the incapacitated person if the court finds that it
was made while the person was incapacitated or if there was a breach
of fiduciary duty by the previously appointed agent.
a. MHL § 81.29(d) provides in part: “If the court determines that
the person is incapacitated and appoints a guardian, the court
may modify, amend, or revoke any previously executed
appointment, power, or delegation under section 5-1501, 5-
1505, or 5-1506 of the general obligations law . . . or any
contract, conveyance, or disposition during lifetime or to take
effect upon death, made by the incapacitated person prior to the
appointment of the guardian if the court finds that the
previously executed appointment, power, delegation, contract,
conveyance, or disposition during lifetime or to take effect
upon death, was made while the person was incapacitated or if
the court determines that there has been a breach of fiduciary
duty by the previously appointed agent.”
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ii. Accounting proceedings
1. See Matter of Estate of Cohen, 139 Misc 2d 1082 (Sur Ct, Rensselaer
County 1988) (Surrogate’s Court had jurisdiction to grant coexecutor’s
request to compel accounting of coexecutor for her activities as
attorney-in-fact of decedent).
2. See In re Conklin, 48 Misc 3d 291, 292 (Sur Ct, Nassau County 2015)
(“The issues at the hearing were whether the agent[s] appointed by the
decedent in these powers of attorney acted appropriately when they:
closed out multiple Totten trust accounts; sold the decedent’s
specifically bequeathed cooperative apartment; paid $20,000.00
allegedly for the renovation of one of the agent’s bathrooms; and paid
themselves compensation as agents.”).
3. See In re Garrasi, 33 Misc 3d 1224(A), 2011 WL 58430282011 (Sur
Ct, Schenectady County 2011), aff’d sub nom, In re Samuel A. Garrasi
and Mary H. Garrasi Family Trust, 104 AD3d 990 (3d Dept 2013)
(“Despite some lay testimony from Robert Garrasi and Gail Aggen
that their father was very ill and physically debilitated in or around
December, 2001, no medical records were offered into evidence, nor
was any expert testimony or opinion offered to establish that Samuel
Garrasi did not have the capacity to execute the Power of Attorney on
December 4, 2001. Accordingly, the Court declines to make such a
finding, and therefore will not void the initial deposit into the Trust on
this ground or any alternative grounds alleged by the Objectant as set
forth above.”).
iii. SCPA 2103 discovery/turnover proceeding
1. See In re Batlas, 2016 NY Slip Op 07317 (2d Dept Nov. 9, 2016)
(ancillary administrator of decedent’s estate petitioner for turnover of
annuity funds disbursed to attorney in fact pursuant to beneficiary
designation executed by attorney in fact; affirming grant of summary
judgment determining that power not duly acknowledged).
iv. Special proceeding pursuant to GOL § 5-1510(2)(b) to determine capacity
1. “A special proceeding may be commenced pursuant to this section . . .
to determine whether the principal had capacity at the time the power
of attorney was executed” (GOL § 5-1510[2][b]).
a. Standing to maintain proceeding
i. “A special proceeding may be commenced pursuant to
subdivision two of this section by any person identified
19
in subparagraph three of paragraph (a) of subdivision
two of section 5-1505 of this title,1 the agent, the
spouse, child or parent of the principal, the principal’s
successor in interest, or any third party who may be
required to accept a power of attorney (id. § 5-1510[3]).
v. Special proceeding pursuant to GOL § 5–1510(2)(i) to compel acceptance of a
power of attorney
1. See In re Imre B.R., 40 Misc 3d 1237(A), 2013 WL 4766759 (Sup Ct,
Dutchess County Sept. 5, 2013) (“Prior to compelling Merrill Lynch to
accept the power attorney at issue herein, this Court must examine
whether a valid power of attorney exists. Merrill Lynch asserts that
Ilona R. may have lacked capacity at the time the power of attorney
was executed.”).
vi. Other
1. Thomas v Laustrup, 21 AD3d 688, 689 (3d Dept 2005) (action for
specific performance of real estate contract; defendants alleged, inter
alia, that the power of attorney pursuant to which contract was signed
was invalid due to principal’s incompetency at the time of its
execution and that agent’s use of such document to sign the disputed
contract made it void).
2. Coulter v Seneca Fed. Sav. and Loan Ass’n, 171 AD2d 1046, 1046
(4th Dept 1991) (plaintiff alleged defendant bank improperly permitted
agent to make unauthorized withdrawal from account of decedent;
“Plaintiff, however, in opposition to defendant’s motion for summary
judgment, introduced admissible evidence that raised a factual
question concerning whether the decedent had the capacity to confer
such power of attorney.”).
b. Purposes of capacity determination
i. To determine principal’s capacity to execute power of attorney
1. Capacity required
a. GOL § 5-1501B(1)(b) requires that a power of attorney be
executed by a principal with capacity.
1 Section 5-1505(2)(a)(iii) identifies the persons entitled to a record of all receipts,
disbursements, and transactions entered into by the agent on behalf of the principal, and a copy
of the power of attorney.
20
b. The statute defines capacity as the “ability to comprehend the
nature and consequences of the act of executing and granting,
revoking, amending or modifying a power of attorney, any
provision in a power of attorney, or the authority of any person
to act as agent under a power of attorney” (GOL § 5-
1501[2][c]).
c. As in a probate proceeding, capacity is determined as of the
time the power of attorney is executed.
i. In re Imre B.R., 40 Misc 3d 1237(A), 2013 WL
4766759 (Sup Ct, Dutchess County Sept. 5, 2013):
“Initially, this Court notes that there is no medical
evidence offered as to Ms. R.'s state of mind at the time
of the signing of the power attorney, i.e. December 18,
2010. Nor, does this Court seek to supplant its intellect
for that of a physician, so as to indicate whether or not a
lack of capacity may or may not be inferred by a
statement that Ilona R. suffered from “moderate to
severe dementia,” a month following her execution of a
power of attorney.”
2. Burden of proving capacity/incapacity
a. In Pruden v Bruce, 129 AD3d 506 (1st Dept 2015), a patient
executed a power of attorney designating her mother attorney-
in-fact. The mother then brought a medical malpractice action
pursuant to the power of attorney. The defendants moved to
dismiss, arguing that the patient was not competent to execute
the power of attorney.
b. The court explained that the defendants had burden of proving
the patient’s lack of capacity to execute the power of attorney.
i. “A party’s competence to enter into a transaction is
presumed, even if the party suffers from a condition
affecting cognitive function, and the party asserting
incapacity bears the burden of proof” (id. at 507
[citations omitted]).
ii. “Since Montefiore failed to submit any evidence
concerning Spinner’s competence at the time she
executed the power of attorney, other than the
document itself, it did not meet its initial burden in
21
support of the motion, and the burden did not shift to
plaintiff to demonstrate competency” (id.)
ii. To determine whether the principal had capacity to provide direction and
authorization of transactions
1. In In re Carl R.P., Jr., 44 Misc 3d 1219(A), 2014 WL 3871204 (Sup
Ct, Suffolk County Aug. 6, 2014), the petitioner brought a
guardianship proceeding, alleging that his sister failed to utilize the
power of attorney that her mother had given her to take control of her
mother’s assets “after indications of his mother’s mental decline
became apparent. . . .” The court dismissed the petition, concluding
that despite some impairment, the mother was cognizant of what she
was doing and in fact was directing the agent-daughter in her
spending.
a. “Here, Claire C. testified that she discusses all of her mother's
financial matters with her mother and has permitted her mother
to continue to sign checks after they make financial decisions
together. Since there is no credible evidence establishing that
the AIP was not capable of understanding what she was doing,
Claire C. has not breached her fiduciary duty by allowing the
AIP to maintain some semblance of control by signing checks
or by spending her own money the way the AIP sees fit. The
court evaluator testified that she has reviewed all of the AIP's
banking records and finds no indication of any
misappropriation by Claire C. of her mother’s assets. She
further stated that although the spending could be considered
extravagant, some months approaching $15,000.00, it does not
amount to financial irresponsibility as all bills and expenses are
all being paid. Moreover, the court evaluator concludes that the
AIP understands what she is doing and wants to spend her
money on family members.”
b. “While the AIP does spend large sums of money on
possessions, travel, and gifts (for her daughters and
grandchildren mainly), she does so of her own volition and the
Court finds that she possesses the requisite capacity to know
what she is doing.”
iii. To determine effective date of “springing” power of attorney
1. GOL § 5-1501B(3)(b): “If the power of attorney states that it takes
effect upon the occurrence of a date or a contingency specified in the
document, then the power of attorney takes effect only when the date
or contingency identified in the document has occurred, and the
22
signature of the agent acting on behalf of the principal has been
acknowledged. If the document requires that a person or persons
named or otherwise identified therein declare, in writing, that the
identified contingency has occurred, such a declaration satisfies the
requirement of this paragraph without regard to whether the specified
contingency has occurred.”
2. As explained in Professor Rose Mary Bailly in her 2011
Supplementary Practice Commentaries to GOL § 5-1501B: “The type
of power of attorney described in section 5-1501B(3)(b), formerly
called a ‘power of attorney effective at a future time,’ is known
colloquially as a ‘springing power of attorney’ because it ‘springs’ into
effect ‘upon the occurrence of a date or a contingency specified in the
document’ and upon the agent's signature on the document. A
springing power of attorney gives the principal more control over
when the agent can begin to act. The ‘springing’ event may be one
that can occur immediately or one that may occur in the future, such as
the principal’s incapacity. In the springing power of attorney, the
principal may choose to name a person who is charged with declaring
that the ‘springing’ event has occurred. The effectuation of the
springing power of attorney does not require that the person be correct
in stating that the event has occurred. In essence, the principal is
delegating the determination of when the power of attorney becomes
effective to another person.”
a. In Moon v Darrow, 30 Misc 3d 187 (Sup Ct, Delaware County
2010), the Commissioner of the county’s social services
department brought an action against, on behalf of
incapacitated person, against the person’s son, mortgagor, and
mortgagee, asserting claims arising out of son’s alleged misuse
of power of attorney to transfer incapacitated person’s real
property to mortgagor to satisfy his own debt to mortgagor.
b. The power of attorney provided that it only became effective
when a physician made a statement that the principal suffered
from “diminished capacity that would preclude [him] from
conducting [his] affairs in a competent manner” (id. at 189).
c. Prior to the transaction at issue, a physician, at the request of
the Department of Social Services, filled out and delivered to
that department a form for Social Security entitled “Physician's
Statement of Patient’s Capability to Manage Benefits” in which
the physician stated that the principal had dementia and did
poorly on the dementia questionnaire administered to him. The
physician further stated “I don't think he is in any position to
manage his money.” He also checked boxes on that form
23
stating that the principal was not capable of managing his
benefits and that he was not expected to be able to manage
funds in the future.
d. The plaintiff argued that the defendants did not have a copy of
the physician’s statement, which should have put them on
notice that the principal’s rights were being violated (see id. at
191). The court rejected that argument, noting that while the
statute requires a written statement that the principal is
incapacitated, it does not require a person dealing with the
holder of the power to determine whether the principal is
actually incapacitated; and it follows, according to the court,
that a person dealing with the holder of the power does not
have to inquire about the existence of the statement itself. The
court concluded that “the mere fact that the transfer to Ulmer
was done with a ‘springing power’ was not sufficient to require
either the purchaser, Ulmer, nor the mortgagor, Community
Bank, to make further inquiry about the transaction” (id.).
e. The court nevertheless ruled in favor of the plaintiff against the
purchaser, as it was undisputed that the purchaser was aware
that the holder of the power of the attorney was repaying his
own debt with property belonging to the principal, which
constitutes a breach of fiduciary duty (see id. at 192).
5. Other Proceedings
a. “Bank account” cases
i. Determining validity of joint account
1. See Matter of Waldron, 240 AD2d 507 (2d Dept 1997) (jury
determination that decedent was competent at time he changed bank
accounts to joint accounts was not against weight of evidence;
executors failed to overcome the presumption of competency).
a. “Persons suffering from disease, such as Alzheimer's disease,
are not presumed to be wholly incompetent” (id. at 508).
“Rather, in such cases it must be shown that, because of the
affliction, the person was incompetent at the time of the
transaction” (id.)
ii. Determining validity of Totten trust designation
1. See In re Silverman, 17 Misc 3d 1103(A), 2007 WL 2792153 (Sur Ct,
Kings County Sept. 13, 2007) (objectant in accounting proceeding
24
challenged validity of Totten trusts decedent created when he allegedly
lacked capacity).
2. See Matter of Bryman’s Will, 14 Misc 2d 187 (Sur Ct, Kings County
1958) (discovery proceeding to recover proceeds of bank account from
decedent’s widow).
a. “[T]here is an absence of competent proof that testator lacked
the mental capacity to make a gift in the form of the Totten
Trust account on October 25, 1955. While the testator may
have been incompetent at the end of November 1955, there is
no evidence that he was incompetent in October 1955. The
burden of petitioner to establish the plea of testator’s
incompetency was not sustained.”
b. Proceeding where validity of beneficiary designation is at issue
i. See Cohen v Fiene, 38 Misc 3d 1229(A), 2013 WL 842099 (Sup Ct, Suffolk
County Feb. 27, 2013) (action concerning ownership of annuity accounts).
ii. See Sun Life Assur. Co. of Can. (U.S.) v Gruber, 05 CIV. 10194 (NRB), 2007
WL 4457771, at *14-15 (SD NY Dec. 14, 2007), affd sub nom. Sun Life
Assur. Co. of Can. v Gruber, 334 Fed Appx 355 (2d Cir 2009).
1. Federal interpleader action commenced by insurance company
concerning three competing beneficiary designations.
2. The decedent’s capacity to execute one of the designations was
challenged on the grounds, inter alia, that the decedent, who at the
time was receiving treatment for prostate cancer, lacked capacity
because he signed it at 6:30 at night, after he had experienced a full-
day of intravenous Lasix (a drug described by the court as having
“heavy side effects”), and at a time when he did not have the glasses
he required to read.
3. On a motion for summary judgment, the court began its analysis of the
“lack of capacity” argument by stating the proposition that, under New
York law, parties to any contract are presumed to be competent, and a
party asserting incapacity has the burden of proving incompetence.
4. It then recited the Ortelere standard for mental capacity, i.e., whether
the person’s mind was “so affected as to render him wholly and
absolutely incompetent to comprehend and understand the nature of
the transaction.”
25
a. Citing authority, it made clear that illness alone does not give
rise to a presumption of incapacity.
5. The court then reviewed the three related pieces of evidence offered in
an effort to show that the decedent lacked capacity to execute the
challenged designation.
a. First, that the decedent signed the designation late in the day
after receiving chemotherapy, the side effects of which
allegedly included dizziness, confusion, drowsiness and blurred
vision.
i. Notably, the party contending that the decedent lacked
capacity conceded that the decedent was alert earlier in
the day, but argued that by 6:00 or 7:00 p.m., the
decedent had been worn down by the drugs.
ii. The court concluded, however, that the fact that the
decedent was taking drugs that have the side effects of
dizziness and confusion was irrelevant to New York’s
test for incapacity under Ortelere. It stated that the
source of the incapacity is irrelevant, only a party’s
resulting cognitive abilities are relevant.
b. Second, that when the decedent signed the designation he did
not have his glasses, which he required to read.
i. The court noted, however, that “New York courts have
expressly held that so-called reading glass claims fail to
raise a triable issue on the question of capacity” (id. at
*15, quoting Daniel Gale Associates, Inc. v. Hillcrest
Estates, Ltd., 283 AD2d 386, 387 [2d Dept 2001]).
c. Third, three days later the decedent told the party challenging
the designation that he was unsure of what he had signed on
that date.
i. The court held that this, too, failed to raise an issue of
fact, because incapacity must be shown at the time of
the disputed transaction. “Whether Charles had a
recollection of the event three days later is a separate
question” (id.).
26
c. Proceedings where validity of a deed is at issue
i. See Crawn v Sayah, 31 AD3d 367, 367 (2d Dept 2006) (action, inter alia, to
cancel deed and set aside conveyance of real property on the ground that the
decedent lacked mental capacity).
1. The complaint alleged that decedent was 79 years old, was suffering
from a critical illness and from “an extreme form of dementia” with
“no understanding of the nature of his surroundings” (id. at 368-369).
It was further alleged that, while decedent was in such condition, the
defendant removed him from a health care facility and transported him
to an attorney's office to execute the deed (id. at 369).
2. The Appellate Division relied on the presumption of a party’s
competence, stating that the defendant had the burden of proving
incompetence (see id. at 368).
3. It held that the defendant met her initial burden of demonstrating that
the deed was properly executed, through the submission of the
affirmation of the attorney who prepared the deed and witnessed its
execution (see id.).
4. It held, further, that the plaintiff “failed to raise a triable issue of fact
as to the decedent’s mental capacity on the day he signed the deed
because the papers submitted in opposition lacked any probative
value” (id.).2
ii. See also Troutman v Washburn, 197 AD2d 876, 876 (4th Dept 1993) (action
for partition of real property; “There are triable questions of fact warranting
the denial of plaintiff’s motion for summary judgment. Defendant adduced
proof tending to show that he may have lacked capacity to enter into the
transaction [i.e., execute a deed] as a result of a recent stroke and severe
depression”); Picard v Fish, 139 AD3d 1331 (3d Dept 2016) (action seeking
rescission of deed to property to executor before mother’s death based on
fraud, undue influence and coercion, or lack of capacity); Schlage v Barrett,
259 AD2d 691 (2d Dept 1999) (action to set aside deed; “the plaintiff did not
meet her burden of proving her incompetence at the time the gift was given”).
2 While the decision does not identify the papers the plaintiff submitted or explain why they
“lacked any probative value” (id. ), the brief of the defendant-respondent identifies those papers
as “the affirmation of appellant’s attorney [that] merely outlin[ed] the proof counsel might
present at trial” and “the narrative report of plaintiff’s medical expert, Dr. Roger Harris, [that]
was not affirmed or sworn” (2005 WL 4747234, at *8-9).
27
d. Other real property actions
i. Smith v Comas, 173 AD2d 535 (2d Dept 1991) (action for specific
performance of contract for sale of real property; party to contract alleged he
lacked capacity to enter into contract because of his alleged mental
incompetency).
e. Proceeding to annul marriage
i. DRL § 140(c) (“[a]n action to annul a marriage on the ground that one of the
parties thereto was a mentally ill person may be maintained at any time during
the continuance of the mental illness, or, after the death of the mentally ill
person in that condition, and during the life of the other party to the marriage,
by any relative of the mentally ill person who has an interest to avoid the
marriage”).
1. Annulment of marriage is also an available remedy in an article 81
proceeding (see, e.g., In re Joseph S., 25 AD3d 804, 806 [2d Dept
2006]).
f. Proceeding to determine validity of right of election
i. See In re Berk, 71 AD3d 883 (2d Dept 2010) (proceeding pursuant to SCPA
1421, inter alia, to determine the validity and effect of an election).
1. Opposing the petitioner’s motion for summary judgment, the
decedent’s sons provided evidence that the petitioner, “knowing that a
mentally incapacitated person [was] incapable of consenting to a
marriage, deliberately [took] unfair advantage of the incapacity by
marrying that person for the purpose of obtaining pecuniary benefits
that become available by virtue of being that person’s spouse, at the
expense of that person’s intended beneficiaries” (id. at 885 [citing
Campbell v Thomas, 73 AD3d 103 (2d Dept 2010)]).
2. The Appellate Division reversed the Surrogate’s Court’s grant of
summary judgment for the petitioner, stating that “[s]hould the trier of
fact so determine [that the petitioner engaged in the conduct alleged],
equity will intervene to prevent the petitioner from becoming unjustly
enriched from her wrongdoing, as a court cannot allow itself to be
made the instrument of wrong” (id. at 886 [citation omitted]).
FF\6020261.1