testamentary capacity

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Very often, when the proponent of a will (and sometimes even the attorney-draftsperson or witness) is questioned about the decedent’s mental state and the decedent’s instructions, the reflexive response is that the decedent was “as sharp as a tack” and was “as clear as a bell.” But overselling a decedent’s capacity and clarity of communication using tired metaphors may result in the trier of fact becoming suspicious of the proponent, perhaps perceiving the proponent as dishonest where other evidence reveals that the decedent likely had diminished capacity. Frank Santoro discusses the issue of testamentary capacity in our latest entry.
Continue Reading Sharp as a Tack . . . Clear as a Bell

Although summary judgment in a contested probate proceeding historically has been rare, the recent trend has been for Surrogate’s Courts to grant such relief with increasing frequency. Consistent with that recent trend, Surrogate’s Courts have granted summary judgment dismissing probate objections alleging that a testator lacked testamentary capacity, notwithstanding the testator’s diagnosis of dementia before executing the propounded will. Our latest entry, written by Robert M. Harper, discusses several cases in which a testator’s diagnosis of dementia prior to executing the propounded will was insufficient to raise a triable issue of fact to withstand summary judgment dismissing a capacity objection.
Continue Reading Testamentary Capacity, Summary Judgment and a Testator’s Diagnosis of Dementia

In Matter of Feller, a contested probate proceeding that was decided last week in Monroe County, the Surrogate addressed typical objections pertaining to due execution, testamentary capacity, and undue influence. The decision provides a cohesive illustration of the standards and considerations that Surrogates routinely utilize in addressing these allegations. Jaclene D’Agostino discusses the case in this week’s entry.
Continue Reading Summary Judgment Granted, Dismissing Objections and Admitting Will to Probate