Probate, trust, guardianship and inheritance litigation
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New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest

In Matter of Falkowsky, a contested probate proceeding, the New York Supreme Court, Appellate Division, Second Department, affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capacity and undue influence, and denied the admission of the will to probate.

The Court affirmed the decision of the Surrogate’s Court on the finding of lack of testamentary capacity alone, focusing on the evidence presented which effectively demonstrated that the decedent did not understand the nature and extent of his property.  A lengthy dissent memorandum reviews the evidence which supported a finding that the decedent indeed possessed testamentary capacity under New York law.  This opinion is lengthy but worth a read for anyone challenging or defending a will on the grounds of lack of testamentary capacity in New York.

The Facts of Matter of Falkowsky

Harold Falkowsky was hospitalized on December 1, 2014.  On December 15, 2014, he purportedly executed a last will and testament (“Will”) in which he devised $20,000 to each of his sons, Ira and Jeffrey, 50% of the residue of his estate to charities, and the other 50% of the residuary estate to his sister, Alice Sobel.  Decedent died on January 14, 2015, one month after he executed the Will.

In March 2015, Alice (Harold’s sister and 50% residuary beneficiary), petitioned for probate of the will and letters testamentary.  Jeffrey filed objections to the probate of the will, alleging lack of testamentary capacity and undue influence.

After a nonjury trial, the Surrogate’s Court determined that (1) Alice failed to establish that the decedent had the requisite testamentary capacity to execute the will and (2) the will was the product of undue influence by Alice. On October 7, 2020, a decree was entered, in effect, granting the objections alleging lack of testamentary capacity and undue influence, denying admission of the will to probate, and directing that the preliminary letters testamentary issued to Alice be revoked. Alice appealed.

Review of a Will Contest After Nonjury Trial

“In reviewing a determination made after a nonjury trial, this Court’s authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case that the trial judge had the advantage of seeing and hearing the witnesses” (Matter of Marsh, 106 AD3d 1009, 1011; see Matter of Duplessis, 123 AD3d 927, 927). “The credibility determinations of the Surrogate, who presided at the trial and heard all of the testimony, are entitled to great weight on appeal” (Matter of Coviello, 57 AD3d 662, 663; see Matter of Neary, 44 AD3d 949, 950).

The Court noted that in this case, the Surrogate’s Court found that Decedent’s son Jeffrey testified credibly, and that Alice’s testimony was  “at times very questionable, at other times false or completely inaccurate, rendering [the] court to question Alice’s general veracity.”

The Test For Testamentary Capacity In New York

The Court began by reviewing the law regarding testamentary capacity in New York:

It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors: (1) whether she [or he] understood the nature and consequences of executing a will; (2) whether she [or he] knew the nature and extent of the property she [or he] was disposing of; and (3) whether she [or he] knew those who would be considered the natural objects of her [or his] bounty and her [or his] relations with them'” (Matter of Kumstar, 66 NY2d 691, 692, quoting Matter of Slade, 106 AD2d 914, 915; see Matter of Gobes, 189 AD3d 1402, 1404; Matter of Martinico, 177 AD3d 882, 884).

Understanding the Nature and Extent Of Property

The Court went painstakingly through the evidence as to decedent’s understanding of the nature and extent of the property of which he was disposing in upholding the determination that the decedent lacked testamentary capacity under New York law:

Here, the record shows that, contrary to Alice’s contention and the position of our dissenting colleague, Alice failed to demonstrate that the decedent knew the nature and extent of the property of which he was disposing (see Matter of Fish, 134 AD2d 44, 46; Matter of Slade, 106 AD2d at 915). “While a testator need not have precise knowledge of the size of his [or her] estate, the authorities clearly hold that a testator’s lack of awareness of or ability to keep in mind without prompting the general nature and extent of one’s real and personal property requires denial of probate” (Matter of Fish, 134 AD2d at 46 [citation omitted]). The decedent, who lived carefully on social security and pension income alone without invading his assets, failed to recall that he was entitled to receive his late wife’s annuity, valued at $884,447.32, which was the single largest asset of his estate. Significantly, although he was an accountant, he was unable to collect the annuity. That the decedent was able to tell the attorney who prepared the will that his estate was not taxable, and that he had not taken the minimum distribution for 2014 for his individual retirement account (hereinafter IRA), yet never mentioned the annuity, is evidence of his inability to recall this very significant asset. Contrary to our dissenting colleague’s opinion, the record does not support the view that the decedent had deemed his right to the annuity as waived or lost, but rather the record demonstrates that the decedent was unable to manage the process of collecting the annuity and no longer recalled that it existed.

The Court continued:

Moreover, Alice testified that the decedent told her his total assets amounted to $200,000. The decedent then told the attorney who prepared the will that his total assets amounted to $1.5 million, when in fact, with the annuity, his assets, including nonprobate property consisting of an IRA in the amount of $258,299, are valued at more than $2.6 million. This amount does not include the CDs the decedent claimed were held in trust for his grandchildren, which are not listed on the inventory of assets filed with the Surrogate’s Court.

Additionally, other than two accounts, the decedent was unable to specifically identify by name any of his accounts; moreover, he did not know the value of the accounts. He never communicated to the attorney drafting his will that he had two accounts in trust for his sons, with a total value of approximately $167,700. With regard to the CDs the decedent claimed were held in trust for his grandchildren, he did not remember where they were located, nor did he impart their values. Notably, while the attorney drafter was experienced and was expecting that probate would be contested, she did not ascertain most of the details regarding the nature and extent of the decedent’s property.

The Court then examined the evidence regarding the Decedent’s medical situation on the day he executed the will and surrounding time period:

On the day he executed the will, the 83-year-old decedent, who had stage IV prostate cancer, had been a patient at WPH for two weeks, since December 1, 2014. He was admitted with a fever, generalized weakness, pneumonia, bilateral pleural effusion, and a 30-to-40-pound weight loss over the prior three to four months. During those two weeks, he had a choking incident on December 4, which caused respiratory and cardiac arrest and resulted in intubation and transfer to the ICU, and a second incident on December 13, two days prior to executing the will, during which he developed respiratory arrest, was transferred to the CCU, and was sedated with morphine. At times, during the day before he executed the will, as well as on the morning of the day of the execution, the decedent exhibited an inability to follow instructions, disorientation, confusion, inability to benefit from education, impulsive behavior, and a potential to injure himself. On both the day prior to the execution of the will and the day the will was executed, the decedent was intubated and on a ventilator and unable to speak. The decedent was also sedated with lorazepam the day before the execution of the will.

The Court determined that the Surrogate’s Court properly determined that Alice failed to prove that the decedent possessed the requisite testamentary capacity under New York law, as she failed to establish that the decedent knew the nature and extent of the property of which he was disposing.

The Dissenting Opinion – Decedent Possessed Testamentary Capacity Under New York Law

The dissenting memorandum highlighted other evidence presented at the trial court level, focusing on the testimony of the drafting attorney, the comments by decedent regarding his sons, his consistent desire not to leave his sons anything in his will, and also his medical records.

The dissent stated:

The will was executed under the supervision of an attorney, Allison Guthrie Fischer, in the presence of two witnesses who signed self-proving affidavits. The supervision of counsel triggers a presumption that the execution of the will comported with statutory provisions (see Matter of Moskoff, 41 AD3d 481, 482; Matter of Tuccio, 38 AD3d 791Matter of Levenson, 289 AD2d 577, 578). Indeed, there is no reading of this record other than to conclude that Fischer, an attorney who specializes in the area of trusts and estates, with extensive experience in will-drafting, handled this matter with a high degree of caring, conscientiousness, and capability each time she interacted with the decedent. Such interactions include, but are not limited to, the draftsmanship of the will, her advices to the decedent, her attention to detail, and the execution of the document itself.

Also clear from the record is that during all meetings between Fischer and the decedent on October 21, 2014, at the Esplanade Senior Residence (hereinafter Esplanade), and on December 6, 2014, December 8, 2014, and December 15, 2014, at White Plains Hospital Center (hereinafter WPH), the decedent was firm, consistent, and unwavering in expressing that he wished to leave no portion of his estate to his two sons, Ira Falkowsky and Jeffrey Falkowsky, the objectant (see Matter of Walker, 80 AD3d 865). The decedent gave reasons for wanting to exclude his sons from any meaningful portion of the estate, stating on one occasion to Fischer that the sons “do nothing for him” and on a different occasion to Fischer that they “don’t give a s**t, and he’s asked for help” from them. The decedent complained that his sons did not visit him, whereas his sister, Alice, regularly visited him at the Esplanade and at WPH. The decedent’s expressions of disdain for his sons is repeated at various times throughout the notes in Fischer’s file, and even in notes contained in his hospital chart. When Fischer advised the decedent that the will should contain some bequest to both sons, with an in terrorem clause, as it would be strategically wise to deter a challenge to probate, the decedent initially, and reluctantly, agreed to provide each son with only a $2,000 bequest. Fischer later persuaded the decedent to bequeath $20,000 to each son with an in terrorem clause, which was well below the $100,000 to $200,000 bequest to each that Fischer had recommended. When Fischer recommended a higher bequest to the sons, the decedent’s response was “to hell with them.” The will ultimately provided that after $20,000 payments to each of the sons, the remainder of the decedent’s estate was to be divided 50% to various defined charities and 50% to Alice. Thus, in addition to the presumption of due execution under the supervision of counsel, the terms of the will reflected the decedent’s oft-repeated, clear, unyielding, and consistent desire to exclude his sons from the overwhelming bulk of his estate.

The dissent also focused on Decedent’s medical records, reaching a different conclusion as to testamentary capacity than the majority:

On December 15, 2014, the date the decedent executed the will, he was a patient at WPH. He had been admitted to WPH on December 1, 2014, and intubated days later. However, according to Fischer, the decedent was alert, sitting up in bed, and able to communicate with nods of the head, hand gestures, and notes. According to Fischer, she reviewed the will with the decedent in detail over the course of 20 to 25 minutes. He nodded or grunted his assent to all of the various provisions of the will, including his desire for the in terrorem clause and the appointment of Alice as the executor. He scowled at the point involving the $20,000 bequest to each of his sons. Then, in the presence of the two witnesses, the dispositive provisions of the will were reviewed again, and the decedent nodded his agreement at all relevant times. Fischer testified that she “absolutely” believed that the decedent was competent to make a will, was not under any duress in doing so, and explained that she would not have supervised the execution of the will if she had any reason to believe that he was not competent. The two witnesses to the execution of the will confirmed Fischer’s account of what had occurred in their presence, and both testified that the decedent was competent at the time the will was executed.

Shortly after Fischer’s arrival at the decedent’s hospital room to finalize the will, a nurse appeared and said that the decedent could not sign anything, and asked Fischer to leave the room. Upon hearing this, the decedent waved the nurse out of the room, and belied the nurse’s concerns by sitting up in the bed, reviewing the provisions of the will, and ultimately signing the document. “Mere proof that the decedent suffered from old age, physical infirmity and chronic, progressive senile dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made” (Matter of Buchanan, 245 AD2d 642, 644 [citations omitted]; see Matter of Hedges, 100 AD2d 586, 588). A hospital note from December 5, 2014, indicated that the decedent had appointed Alice as his health care proxy, signed the form in the presence of a physician, and made clear that he did not want his sons involved or updated as to his status. Another hospital note, from December 8, 2014, reflected the decedent’s understanding of the medications and procedures that were explained to him. Elsewhere, notes in hospital charts frequently described the decedent as being alert and oriented. At the time of intubation, the decedent was disoriented, confused, and impulsive, but nonetheless oriented as to person, cooperative, calm, and followed commands. Significantly, on the date the decedent executed his will, the hospital chart noted that he was able to follow commands, was involved in discussions of medications and side effects, and was awake, responsive, and alert. No evidence admitted at trial, including medical documentation, established that the decedent was not possessed of testamentary capacity at the time the will was executed. Accordingly, Alice proved by a preponderance of the evidence that the decedent understood the nature and consequences of making a will, and Jeffrey’s evidence to the contrary was insufficient in response (see Matter of McCloskey, 307 AD2d 737, 738).

The dissent concluded that the decedent indeed understand the nature and extent of his property:

Contrary to the Surrogate’s Court’s determination and the opinion of the majority on appeal, the decedent knew the nature and extent of the property of which he was disposing. Initially, the decedent had estimated for Fischer the value of his estate to be approximately $1.5 million, consisting of $1 million in various stocks and investments, a small cooperative apartment in Brooklyn, and additional sums in various bank accounts with roughly $100,000 in each. While the value of the co-op was listed on the application to the Esplanade as approximately $500,000, the record is unclear whether the decedent, in speaking with Fischer, included the co-op in estimating the value of his estate. The decedent’s description of the general nature and value of his assets was essentially accurate. Nonetheless, the court found that the decedent did not know the nature, extent, and distribution of his property upon concluding that the value of the estate, based upon exhibits received into evidence, was more than $2.9 million. However, the court’s calculation was in error. The estate’s list of gross assets identified what was individually owned or receivable to be $1,466,337.09, which was consistent with the amount the decedent had estimated as the value of his estate in his discussions with Fischer.

Separately, the decedent’s wife, who predeceased him, had an annuity worth $888,447. In 2010, the decedent made attempts to collect the annuity, but his claim was rejected as untimely at that time, and again in 2012, apparently without further follow-up. There is no evidence in the record that, given the passage of time since 2012, the decedent had deemed his right to the annuity as anything other than waived or lost. Significantly, he did not mention this annuity as among the assets he described to Fischer as part of his estate. Even adding to the decedent’s assets $258,299 of nonprobate property held in a Deutsche Bank account in trust for the two sons, the decedent’s description of his assets and their values, while general in some respects, was sufficiently accurate and need not be specific (see Matter of Fish, 134 AD2d 44, 46). Alice therefore met her burden of establishing that the decedent knew the general nature and extent of his real and personal property, Jeffrey failed to establish adequate evidence to the contrary, and the Surrogate’s Court should not have denied probate on the basis of this issue (see Matter of Walker, 80 AD3d at 867).

The dissent also discussed the allegations of undue influence.  This entire opinion is worth a read, because it shows the different evidence that should be presented and highlighted to prosecute or defend a testamentary capacity will challenge in New York.


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