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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

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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

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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

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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]).

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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

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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

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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).

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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)

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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

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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.

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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

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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

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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

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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