Articles Posted in Estate Administration

News outlets have recently reported on the Will contest brought by the children of the late country singer Glen Campbell.  This post will address the concepts of diminished capacity and undue influence and whether these concepts can potentially invalidate a Will in New York.

In general, a person can make a Will and disinherit his entire family or those deemed of close relation.  The exception to this rule is that one cannot disinherit a spouse, as spouses qualify for at least a minimal portion of the estate under the concept of elective share.  Potentially a person may be estranged from his family and decide to leave his estate to a friend or someone else who is close to him.  New York Surrogates Courts generally favor the making of a Will and will not invalidate a Will merely because a particular person was disinherited.

However, a Will can be contested on the basis of the diminished capacity of the person making the Will.  Diminished capacity is when the person making the Will is afflicted with a physical or mental ailment which may cloud his judgment or render him unable to know his own wishes.  Let’s say that the testator (the person who made the Will) was suffering from Alzheimer’s disease, like Glen Campbell.  Such an affliction does not automatically invalidate the Will.  New York Courts have held that if the testator had a “moment of lucidity” when the Will was signed, then it will be valid.  So long as the testator understood the general assets of his estate and the “natural objects of his bounty” (the identity of his family members or friends), the Will should be upheld.  Prudent legal practitioners  typically meet alone with the testator before the Will is drafted and before it is signed to ask questions and attempt to evaluate the mental capacity of the testator.  The recollections of the meetings should be memorialized in a memorandum to the client’s file in the event of a Will contest.

We have written extensively about the pitfalls in not having a will. As such, many clients heed that warning and request that their attorney draft a will and other associated estate documents on their behalf.  While these clients have taken responsible action and had their estate documents drafted, additional tasks are required.  We suggest that estate documents be reviewed and potentially redrafted on a periodic basis for the reasons highlighted in this post.

Most people experience changes in their life and in the lives of those around them that require revision of estate documents.  Such internal changes are as follows.  Perhaps the executor appointed in the will does not currently get along with the testator (person making the will) or is unable to perform his duties due to illness or death.  Maybe the formerly adorable child is now an irresponsible young adult, whose inheritance should be left in a trust.  Perhaps an estrangement of relationship has occurred, so that the testator wishes to disinherit a relative.  These events are under the knowledge and control of the testator.

Relationships and events may result in the need to revise estate documents.  Some of these events are divorce of the testator or adult child, a grandchild’s birth, receipt of inheritance, retirement, and chronic disability.  Your attorney will assist you in adjusting your estate documents whether or not such events are joyous.

As our political landscape is more uncertain than ever after this week’s election results, our readers  cannot be certain that estate tax repeal is on the horizon.  Also, most people do not own substantial assets so that estate taxes may apply to their estates.  However, most of our clients  could benefit from the drafting of a Will and other estate documents by a skilled attorney.  This post will address the benefits of engaging a qualified attorney to draft your estate documents.

Without a Will, one’s property will be left according to the laws of intestacy.  Intestacy distribution through an administration proceeding may serve most people well enough.  For instance, if one’s closest surviving relative is a daughter with whom there is a good relationship, the parent would have no problem with the daughter inheriting her entire estate.  However, if there is also a son with whom the parent has an estranged relationship, intestacy would result in both children sharing in the estate equally.  Since this is not a result favored by the parent, the drafting of a Will is essential so that the parent’s wishes that only the daughter inherit will be honored.  Also, should the parent wish for both children to inherit, but in unequal portions, a Will would be needed to address this desire.  Likewise, a Will can allocate responsibility for the payment of estate taxes between beneficiaries and may direct that only certain assets be liquidated in order to pay estate taxes.

When working with an attorney  to draft estate documents, the opportunity to select an executor to manage the estate is also available.  Otherwise, with intestacy, the person who inherits the estate also is appointed to serve as administrator to manage the estate.  This may not be a favorable result if this person is not as prudent in managing money as another person that may be selected by the decedent.

Movie fans recently learned of the deaths of Carrie Fisher and her mother Debbie Reynolds, which occurred within one day of each other.  Those with symbiotic relationships, such as spouses married for more than fifty years, sometimes die within a close timeframe from one another.  This phenomenon is known as dying of a broken heart.  This post will discuss the legal ramifications of deaths occurring within close proximity.  This author will assume that the persons are husband and wife.

Spouses can pass away in close succession as a result of a sudden event such as an airplane crash or due to natural causes such as failing health in old age.  New York State has adopted its own version of the Uniform Simultaneous Death Act.  This statute provides that if two or more persons who are heirs to one another die within one hundred twenty hours of each other, that they are deemed to predecease the other.  Their estates would then be treated in accordance with the intestate provisions of New York’s Estate Powers and Trusts Law , with their property eventually being inherited by those individuals surviving them in the order as designated by the statute.

There are exceptions to the simultaneous death statute.  Such provisions do not take effect if the result would be that the person’s estate escheats to the state.  Escheat means that when there are no surviving relatives who may inherit, the state receives the property.  In addition, the beneficiary designations in a person’s life insurance policies or specifications contained in legal documents such as a will or trust take precedence over the statute’s simultaneous death provisions.  Your attorney  may advise a couple to include “mirror image” clauses in their wills wherein the wife is deemed to survive the husband in the event of deaths occurring within a certain period of time from one another, preferably in the range of sixty to ninety days.  There may be estate tax concerns that determine which spouse should “survive” the other.  Also, a person may wish to include a provision stating that a particular person should be considered to have predeceased her if she has personal reasons to disinherit a particular person.