Last Will

May 24, 2012

Government Urges Online Media Wills

According to a recent article in the New York Daily News, the modern New Yorker has one more thing to worry about when creating a Will. The proliferation of social media web sites like Facebook and Twitter, along with the abundance of e-mail and online transaction accounts, is creating a demand for will provisions tied to the administration of a deceased person’s web usage.

Even the federal government is acknowledging the phenomenon. As of April, the federal government’s official personal finance information page includes a recommendation that people leave detailed and specific instructions for the administrators of their Wills as to who will have access to their online accounts after they die. The federal government also urges people to update these Will instructions frequently so as to reflect changes in online usage. Many online accounts require users to change their passwords after a period of time. Other accounts are used less frequently, meaning their users are often forced to reset their passwords. Therefore, it is imperative to record these changes.

The need for such provisions in a Will may not be immediately apparent. However, if you are the type of person that utilizes online billing or online banking, you are typically the only person who can access these applications. Suppose you have opted to receive paperless billing via e-mail. If no one in your life is kept apprised of your e-mail password or billing account password, your executor or administrator may be unable to easily obtain information concerning something like the utilities in your home. Similarly, those who receive paperless credit card statements could accumulate significant interest charges on outstanding debts if their fiduciaries are unable to access the online account to obtain account information or pay the bill. Without a trusted individual empowered with the responsibility for these online accounts – and the login information to access them – a deceased person may unwittingly have imposed considerable confusion and financial strain on their estate.

On the social media front, accounts on sites like Facebook contain a wealth of personal information and private interactions that a deceased person may not want “floating” in cyberspace. Often without realizing it, living users employ a host of defensive measures to safeguard against other people’s access to this private information. However, a deceased’s unmaintained account can be significantly more susceptible to intrusion for identity fraud and other purposes. Modern Wills empower trusted individuals to access these accounts upon the user’s death and to either close the accounts or restrict them to memorial postings about the deceased. Facebook, for example, will deactivate the account of a deceased user upon request and replace it instead with a page to post memories.

If online accounts and social media are ingrained in your life to the point that the inability to access such accounts could potentially harm your beneficiaries, it may be prudent to consult a New York estate attorney. Your attorney can help determine whether such access could affect the administration of your estate, and can help craft and maintain a Will tailored to reflect these modern estate issues.

May 22, 2012

Last Wills in New York Express A Person’s Wishes

by Jules M. Haas

A New York Will is a means by which a person can express his or her desires regarding the final disposition of property and the management of the affairs of his estate. New York Estates, Powers and Trusts (EPTL) section 1-2.19 defines a “Will’ as “an oral declaration or written instrument. . . . whereby a person disposes of property or directs how it shall not be disposed of . . . .”

The New York Probate Lawyer Blog has discussed in previous posts that the execution of a Will must comply with a number of requirements such as the necessity for the testator to sign the Will at the end of the document and that there must be “at least two attesting witnesses”. (EPTL 3-2.1).

The reason for strict Will formalities is to protect the intention of the testator and to establish the sanctity of the document that expresses a person’s final desires. The Surrogate’s Court always wants to be certain that fraudulent or invalid papers are not given judicial validation. Obviously, once a person dies, a Will may be the controlling statement regarding a person’s personal affairs.

Preparing a Will requires a full consideration of a person’s property and beneficiaries so that the proper provisions and directions are clearly set forth. It is a testator’s expectations that his fiduciaries, such as his Executors and Trustees, carry out the terms of the bequests or other dispositions spelled out in the document.

As a New York Estate Lawyer I spend time speaking with clients to understand their desires so that these matters can be fully and accurately set forth in their Will provisions. Of course, it is common that there is Estate Litigation where controversies arise concerning the meaning or interpretation of certain aspects of a Last Will.

Recently, there have been a number of instances where beneficiaries of charitable provisions have sought to modify the terms of bequests and abrogate the expressed desires of the decedent. In 1964 Edward Carter, who had been a Board of Regents Chairman, bequeathed to UCLA, property which was a rare example of a Japanese private garden. The garden was intended to be maintained in perpetuity. As reported by Charles A. Birnbaum on May 25, 2012 in the Huffington Post Los Angeles, UCLA, without advising the decedent’s family, obtained Court approval to allow the University to sell the property.

A similar scenario occurred in Ipswich, Massachusetts, as previously discussed in this Blog, where a colony of homes was the subject of a land trust established by a Last Will in 1660 for the benefit of the local schools with instructions that the property was not to be sold. As reported by Kathy McCabe on May 13, 2012 in the Boston Globe, the local voters appealed a Probate Court decision that allowed the sale despite the Will restrictions.

These two cases show that despite explicit directions and restrictions provided in a Will, beneficiaries and Courts may sometimes act contrary to a testator’s intent. Nevertheless, in most situations, the testator’s desires are followed. It is important to clearly spell out these desires so disputes can be avoided and, hopefully, a Court will abide by the specific terms of the testamentary instructions

May 15, 2012

Estate Planning for Singles or the Widowed

by Jules M. Haas

How planning for one differs from planning for a couple

In some ways, estate planning for a single person can be more challenging for an estate planner than planning for a couple. When a couple formulates an estate plan, the easiest and most natural thing to do is to entrust one another with all of the responsibilities in the event of one spouse’s death. Among these responsibilities are the administration of the estate, execution of advance medical directives, power of attorney for financial decisions, and access to medical records in end-of-life scenarios.

The relative ease in dealing with these issues for couples is that the surviving spouse is most often within the closest emotional and geographic proximity to the deceased and their assets. Spouses are uniquely qualified to speak for one another, because they have likely had more occasions to discuss end-of-life scenarios with one another. Moreover, the surviving spouse is more likely to have been included in the financial decision making throughout the marriage, making the surviving spouse the utmost authority in the financial decision making beyond the marriage.

Those who never married and those who have been widowed do not have the luxury of entrusting emergency or end-of-life responsibilities to their spouse. These responsibilities typically fall to other members of the immediate family, like siblings. Siblings and other family members are often naturally less in-tune with one’s financial and medical wishes than a spouse might be. Therefore, a single person who is planning for his/her estate should make sure that any responsibilities entrusted to a relative are clearly spelled out in the appropriate documentation. Medical emergencies and end-of-life scenarios are emotional times in which the appropriate people must often be quick and decisive. Quick and decisive action is most easily achieved by a clear delegation of authority backed by legally sound paperwork. The appropriate people should have copies of this paperwork in a safe yet available place.

On that note, single people should bear in mind that the best people to entrust with these responsibilities are often within relative geographic proximity. It makes little sense for a New Yorker to entrust the authority of advance medical directives to a relative living in Seattle, for example.

Single people have even more estate planning considerations to think about. One such consideration is the unavailability of supplemental sources of income in case of disease, disablement, or incapacitation. Single New Yorkers should consider these possibilities in their estate planning efforts. Those who still work should ensure that they are covered by sufficient disability insurance, either privately or through their work. As single people get older, they should also consider purchasing long term care insurance to supplement any health insurance they may have. Long term care insurance typically covers expenses incurred in things like nursing home or hospice care that could be denied by normal health insurance coverage.

No matter which category you fall under, a New York estate planning attorney is the best resource to consult on these matters. Your estate lawyer understands the difference between planning for a couple and planning for the single or the widowed, and can help you craft the appropriate emergency and end-of-life directives, including to whom they will be entrusted.

April 4, 2012

Estate Litigation Can Be Used by New York Trust and Estates Law Firms for Many Reasons

by Jules M. Haas

Estate litigation in New York can involve a countless number of issues. The situation that is most commonly recognized is the Contested Will or Will Contest. This type of trust and estate litigation usually gets newspaper headlines such as in the recent case of the Estate of Brooke Astor.

The typical Will litigation occurs in the New York State Surrogate’s Court and can involve issues concerning a decedent’s testamentary capacity or the proper execution of a Last Will or claims of undue influence that resulted in the disinheritance of close family members.

Another common form of estate litigation relates to the Accounting that an Estate Executor or Administrator must provide to estate beneficiaries when the estate is ready to be distributed. Objections to the Fiduciary Accounting can be filed by the estate beneficiaries concerning an alleged breach of fiduciary duty or the mishandling of assets.

Trust and Estate law firms in New York should be consulted by persons and organizations who have an interest in an estate to obtain advice as to whether appropriate estate litigation should be commenced to protect their rights. In a recent article by Lisa Brown on March 23, 2012 appearing in St. Louis Today, it was reported that Wells Fargo Bank was being sued for breach of fiduciary duty with regard to the loss of millions of dollars in Trust assets.

The New York Probate Lawyer Blog has previously talked about other areas where litigated Court proceedings may be needed. These areas include the following:

(a) A proceeding to compel the production of a Will which is provided by Surrogate’s Court Procedure Act (SCPA) 1401.

(b) A proceeding to Prove a Lost or Destroyed Will which is provided by SCPA 1407.

(c) Proceedings to determine distributees with regard to kinship proceedings or cousin cases, SCPA 2225.

(d) A proceeding to compel a fiduciary to file an Accounting which is provided by SCPA 2205.

As a New York estate lawyer I have represented clients in these and other Estate litigation matters. Many times an estate might be involved in Court litigation that results from events that were harmful to the decedent prior to death. A common type of case is a Wrongful Death action where monetary damages are sought due to some occurrence such as an automobile accident that caused the decedent’s death. The Daily News in an article by Erin Durkin dated March 16, 2012 reported that the family of a deceased New York City Judge was suing the nursing home where the Judge died claiming that the home was not licensed and had kept the Judge imprisoned there and failed to provide him with proper care.

It is important in every estate settlement to closely analyze whether estate litigation is needed to protect beneficiary and family member interests from fiduciary duty breaches or other problems that may arise.

March 28, 2012

New York Trust and Estate Lawyers Can Help Obtain Preliminary Letters Testamentary

by Jules M. Haas

The New York Probate process has many different aspects and requirements. The probate of a Last Will begins with the preparation of a Probate Petition which is to be filed with the Surrogate’s Court. Many of the basic Surrogate’s Court forms can be found online at www.nyccourts.gov/forms/surrogates. The petition is usually filed with the Surrogate’s Court in the County where the decedent was domiciled i.e, where he or she maintained a primary home. So depending upon the decedent’s home, there may be a Westchester County Probate or Nassau County Probate, etc.

The Probate Petition is required to contain: (i) information about the petitioner, who is usually the Executor named in the Will; (ii) information about the decedent such as date of death, address and citizenship; (iii) information about the purported Last Will such as its date and the names of the witnesses to the Will; (iv) the identity of the decedent’s distributees i.e., next of kin; and (v) information about the value of the personal and real property comprising the estate.

In many instances the probate of the Will may be delayed. Probate is essentially the method by which the decedent’s Will is validated as authentic by the Court so that the Will provisions control the disposition of the decedent’s estate assets. This delay may be due to a number of circumstances such as difficulty in determining the decedent’s distributees that raise issues regarding kinship or a Contested Will that might result in Surrogate’s Court litigation lasting many months or years.

New York Trust and Estates attorneys are familiar with these types of delays and regularly counsel the named Executor to apply to the Court for appointment as Preliminary Executor. A Preliminary Executor is a temporary executor that can be appointed while other issues affecting the probate of the Will are resolved. Surrogate’s Court Procedure Act 1412 entitled “Preliminary letters testamentary” provides for this type of appointment. A Preliminary Executor typically has most of the powers that an Executor would have after probate is complete. Thus, a Preliminary Executor can collect the decedent’s assets, open an estate bank account, file estate tax returns, pay bills and expenses and generally engage in all aspects of Estate Administration. However, the Preliminary Executor does not have the power to distribute assets to estate beneficiaries.

The Court has the authority to deny the application for Preliminary Letters in the best interest of the estate. For example, if Objections were filed to such appointment and the Court found that the proposed Preliminary Executor’s actions raised bona fide questions of undue influence, breach of fiduciary duties, or other wrongdoing, the Court could appoint someone other than the nominated Executor in the Will.

In most Surrogate’s Courts such as Manhattan or Queens Surrogate’s Court, the appointment of the Preliminary Executor is not a lengthy process. The Court must be advised as to the assets and liabilities of the estate and can require the appointee to obtain a Surety Bond.

March 14, 2012

New York Real Estate Is An Important Part of An Estate Plan

by Jules M. Haas

New York Estates and Trusts Law Firms deal with issues regarding real estate all the time. The ownership of real estate can take many forms. Queens County estates and Brooklyn estates are likely to have interests in single family houses. Manhattan estates commonly contain condominiums and cooperative apartments.

Regardless of the type of real estate interest owned, estate planning and estate administration requires that these interests be handled properly. The first step in planning for probate with real estate is to determine basic facts about the property. These facts include the following:

1. Identify the owner(s) of the property. Deeds and other certificates of ownership need to be examined to be certain that the person planning his or her estate (the “Testator”) has full right and title to the property. In many instances, a person may have inherited the property from another family member and the ownership interest may be held among a number of people.

In such a case, the testator can only transfer the share of the property he or she owns. Also, if the property is owned with others, say a spouse, in joint ownership, upon the death of the testator, title to the property passes directly to the joint owner and will not be controlled by the person’s Last Will. Thus, provisions in a Last Will giving the property to third parties other than the joint owner would not be effective.

Any and all issues regarding title and ownership should be investigated and resolved at the time the New York estate plan is being developed. This will save time and avoid the hardship of attempting to solve issues during estate settlement when the testator has already passed away and is not available to provide information that could assist in resolving the title issues.

2. Determine whether the property is subject to any liens or mortgages. It is important to anticipate the effect of the owner’s death on these outstanding obligations. For example, when the owner dies, will the decedent’s estate have enough liquid assets available to continue to pay the mortgage until the property is sold. Similarly, if the property is meant to be given by the Last Will to a named beneficiary and not sold, how is the mortgage to be paid?

The type of mortgage on the property is also a subject for review. It has become more popular for senior citizens to obtain reverse mortgages which may greatly reduce the value of the property available to be given to the estate beneficiaries. Also, a reverse mortgage may be required to be paid in full upon the owner’s death and the estate may not have the liquid funds to make this payment.

While mortgages and other liens reduce the amount of assets that the beneficiaries receive, such debt obligations are also estate tax deductions that can reduce the size of an estate for estate tax purposes. Understanding the value of the testator’s real property and the equity available after the payment of all liens is essential to planning an estate.

3. Determine the appropriate manner to give the property to the intended beneficiaries. Real estate is not only one of the most valuable assets in an estate, it often has the most personal attachments among family members. The testator’s home may have been owned by family members for generations and the decedent’s children may have all grown up in the house. Selling such an asset or allowing a family member who still lives there to remain in the home for years to come can cause bitter controversies. Planning for these types of situations is important to avoid disputes that destroy family harmony and end up in probate court litigation.

The Hartford Courant recently reported in a story by Denise Buff dated February 26, 2012 about a decedent who changed her Last Will shortly before death and left the family home to only two of her four children. The two excluded children asserted that the newest Last Will did not reflect their mother’s intent that the house be inherited by all four children and that the mother’s dementia allowed the mother to be subjected to influence to exclude them.

While the best estate plan cannot always prevent unforeseen or improper conduct on the part of others, it is important to put into place a plan that you will be certain reflects your intent and maintains the family harmony to the greatest extent possible.

March 7, 2012

New York Last Wills Should Express The Testator’s Intent

by Jules M. Haas

The preparation of a New York Last Will is an important part of a person’s overall financial plan. The initial step that should be taken is to fully assess and understand the goals that the person making the Will wants to achieve. This process can be summarized as formulating and clearly expressing the intentions that are to be spelled out in the Will provisions. For example, who are the persons that are to benefit from the Will provisions and in what manner or proportion are they to receive these benefits. Beneficiaries can vary from spouses and children to more distant relatives, friends and charities.

It is important at this juncture to keep the estate plan simple. The New York Probate Lawyer Blog recently discussed aspects of the Federal estate tax law such as “portability” of the marital deduction between spouses. While estate planning is essential, it is more important at the outset to develop the basic plan or intent regarding the individuals or organizations that the testator (the person to whom the Will belongs) wishes to benefit. The tax planning and Will structure can then be developed so as to promote or carry-out the basic intent. A Last Will that has complicated tax provisions and trusts may be a great legal document but it is not useful unless it gets the assets to pass to the intended beneficiaries in a clear and efficient manner. Simplicity has its virtues.

The recent death of pop-star Whitney Houston provides an example of a simple yet effective Last Will. It was recently reported by MTV in an article by Gil Kaufman dated March 8, 2012, that Whitney Houston’s Will was written in 1993. In the Will, Ms. Houston’s entire estate was left to her only child, her 19 year old daughter, Bobbi Kristina Brown. It seems that the Will provided for a Trust under which Bobbi is to receive some of the assets at age 21, then some at age 25 and the balance at age 30. Ms. Houston’s mother is named as Executor and her brother and sister-in-law are named as Trustees.

This type of plan is typical for persons with young children and provides a straight forward map for the Trustees to make periodic payments to a young person over time as they get aclamated to handling and being responsible for large sums of money following the death of a parent. I have drafted many Wills for clients which contained similar Testamentary Trusts.

Part of the process in planning is to consider an appropriate payment period since the ages at which Trust Funds can be paid to the Trust Beneficiary are completely within the discretion of the Testator to determine in the Will provisions. Trustees should also be given discretion to make additional payments to beneficiaries which allows the trust to have more flexibility and accommodate unforeseen events.

Last Wills, Health Care Proxies, Living Wills, Living Trusts and Testamentary Trusts all have provisions that express the intent of the creator of these documents. Formulating and then expressing one’s intentions is the first, and perhaps most important, step in creating an effective estate plan.

The extent to which a testator’s intentions can be measured has recently been the subject of a major estate litigation occurring in Massachusetts. As reported in the Portland Press Herald on February 25, 2012, a Massachusetts Merchant left a Will 351 years ago that provided for the nation’s oldest charitable trust in Ipswhich, Massachusetts to fund the local public schools. Recently, the trustees have attempted to forego the Will provisions and convert the local trust property comprised of cottages into condominiums. As reported in the article, the current residents have opposed this plan “saying it violates the sacred intent of Payne’s Will. . . .” As shown by this controversy, even after 351 years, a testator’s intent is still the foundation for the administration of the decedent’s estate.

February 8, 2012

New York Estates May Be Affected by Marital Agreements

by Jules M. Haas

Under New York Law, spouses enjoy protections regarding rights to share in the other spouse’s assets. While both spouses are alive, divorce laws such as “equitable distribution” provide a framework for the disposition of assets between spouses. However, when one spouse dies, rules provided by the New York Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act come into play. Aspects of other statutory rules also must be considered between spouses, both alive and deceased, such as property concepts of ownership in the form of joint ownership or tenancy by the entirety.

During the course of a marriage, spouses may prepare Last Wills, as well as other papers such as pre-nuptial agreements or separation agreements. These agreements may obligate a spouse to provide certain benefits for the other spouse such as maintenance (i.e., alimony) and a paid up life insurance policy. Generally, these agreements are considered contracts and if a spouse dies without satisfying the obligations under the agreement his estate may be found liable for payments he failed to make during life. Additionally, these pre or post martial agreements can provide for a waiver of rights to share in the other’s estate or to act as executor or administrator of the estate.

During estate settlement the requirements of these agreements must be reviewed and considered. Experienced probate attorneys representing executors and administrators typically review these documents so that the estate fiduciary can fully understand the impact the decedent’s lifetime agreements will have on estate administration.

Two recent Surrogate’s Court cases demonstrate how such agreements can affect the final settlement of an estate. In the Matter of Griffin, decided by Monroe County Justice Edmund A. Calvaruso on September 29, 2011 and reported in the New York Law Journal on October 24, 2011, the decedent had signed a Separation Agreement with his wife prior to death. When the decedent died he and his wife owned a house as tenants by the entirety. The agreement had provided that the house should be sold and the sales proceeds divided between them. Among other issues decided by the Court, it was determined that notwithstanding the agreement, following the decedent’s death since the parties were still married, the surviving spouse was entitled to the full proceeds from the sale of the house. The house was not sold until after death. Since the house was still owned by the decedent and his wife as tenants by its entirety at his death, title to the entire house passed by operation of law to the surviving spouse as surviving tenant by entirety and the wife’s property rights as a tenant by the entirety were not terminated by the separation agreement.

In Matter of Piyavan Chantarasmi [a/k/a Matter of Bruan], decided by Westchester Surrogate Anthony A. Scarpino on January 26, 2012 and reported in the New York Law Journal on February 23, 2012, the decedent had signed a Pre-Nuptial Agreement. The agreement provided among other things that he would leave 70% of his estate to trusts to be set up for his children in his Will. The decedent died Intestate (without a Will), due to an accident and, therefore, did not establish the trusts as required by the pre-nuptial agreement. The Court allowed the Estate Administrators to draft and create the trusts for the children as was required by the agreement.

Griffin and Chantarasmi both show that Estate Executors and Administrators must review all agreements and obligations relating to the decedent so that estate administration is properly handled. I have represented estates where these types of agreements had been entered into by the decedent and have advised the estate fiduciaries regarding the implications of these matters.

January 19, 2012

New York Wills Need to Clearly State a Testator’s Estate Plan

by Jules M. Haas

Estate Planning Attorneys in Nassau and Westchester, as in all other New York Counties, are well aware that the documents they prepare for clients must have clearly worded provisions.

A Last Will is a testamentary statement as to where and how a decedent’s assets are to be disposed of. In its most fundamental form a Last Will can set forth a number of dispositions. There can be a statement that certain individuals or entities are to receive a specified property or a specified amount of money.

Additionally, the residue or balance of the estate can be disposed of in any number of ways such as by percentages to a number of recipients. Trusts that are created in the Will are called testamentary trusts. These trusts only come into being after the Will is admitted to probate and the trust is funded. InterVivos Trusts are created outside of a Will and can begin to function as soon as they are prepared.

A New York Will also contains provisions for the appointment of Executors, as well as Trustees of any trust created by the Will. Also, Guardians for minor children can be nominated in a Last Will. Beneficiaries and alternate beneficiaries that are named in the Will should be accurately identified by their relation to the decedent and their names should be correctly spelled.

The utmost care is required so that the Will provisions are clearly worded. Such clarity is essential so that the decedent’s intent can be carried out by his or her Executor and Trustee. Where provisions in a Will and/or Trust are confusing or ambiguous, Executors, Trustees, beneficiaries and the Court are left to try and decipher what the decedent really meant and desired regarding the disposition of property. If the interested parties cannot agree as to the document’s meaning then a Court must construe the intent of the testator. In a proceeding for the Construction of a Will the Court does not rewrite Will provisions. Instead, the Court attempts to carry out the intentions of the decedent. Construction proceedings can involve complex issues for probate lawyers and their clients who are Executors and estate beneficiaries.

A recent example of confusing language requiring Court clarification occurred in the case of Matter of Winifred Gooding Brice, decided by Surrogate Edward W. McCarthy III, (Surrogate’s Court, Nassau County) on December 13, 2011 and reported in the New York Law Journal on January 10, 2012.

In Gooding, the decedent had executed a Last Will which was followed by the decedent’s signing six Codicils. A Codicil is essentially an amendment to the original Will. A question of construction arose because there was a contradiction between two codicils concerning the time a certain trust was to terminate.

Gooding shows that in order to avoid inconsistencies between multiple Codicils and a Last Will, it would be preferable to rewrite and revise the entire Last Will and incorporate all of the modifications into a single document that would not be confusing. By re-doing the entire Will, estate planning and estate administration can be streamlined.

January 6, 2012

New York Guardianship and Estate Settlement Often Cross-Paths

by Jules M. Haas

New York Guardianship proceedings for incapacitated persons are governed by Article 81 of the Mental Hygiene Law (MHL). The New York Probate Lawyer Blog has discussed in numerous posts the powers and duties of a Court appointed Guardian.

In many instances, a petition for Guardianship is filed with the Court because the Alleged Incapacitated Person (“AIP”) appears to be the victim of physical or economic abuse. The Guardianship proceeding will require the appointment of a Court Evaluator and/or Attorney for the AIP. These appointees and the Court itself will review whether any wrongdoing is being perpetrated. Sometimes, a government agency called the New York State Mental Hygiene Legal Service is appointed to protect the AIP’s interests. MHL Section 81.29 entitled “Effect of the appointment on the incapacitated person” provides the Court broad powers to remedy situations where the AIP has been taken advantage of. For example, the Court can void a contract or a power of attorney entered into by the AIP if the Court finds that the AIP lacked capacity when such papers were signed.

Even though the statute gives the Guardianship Court broad powers to remedy wrongdoing, MHL Section 81.29(d) specifically provides that the Court cannot “invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.” Thus, if the AIP signs a Last Will at the time he or she is found to be incapacitated while still alive, any objection or Will Contest to the validity of the Will must wait until the AIP is deceased and the Will is offered for probate.

In this regard, it is interesting to note that a finding of incapacity in a Guardianship proceeding does not mean that a person lacked the testamentary capacity to execute a Last Will. MHL Section 81.29(b) specifically provides that “subject to subdivision (a), the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will”.

Since a Last Will cannot be challenged until a person dies, many issues involving the disposition of the AIP’s estate are fought over only after the AIP dies. Estate settlement and estate administration becomes the new battle ground for problems that could not be settled in the Guardianship.

The Courts clearly recognize that while the overlap of controversies may exist, the paradox of a finding of incapacity for Guardianship cannot forestall an incapacitated person’s ability to sign his or her Will.

This circumstance was clearly shown in a recent case entitled Matter of Biaggi, decided by Justice Alexander W. Hunter, Supreme Court, Bronx County, on November 10, 2011 and reported in the New York Law Journal on November 28, 2011. In Biaggi, objections were filed to the action of the Guardian for retaining an attorney to assist the incapacitated person with drafting and executing a new Last Will. The Court found that the Guardian acted appropriately and noted that “allegations of testamentary capacity and undue influence are matters that should be more appropriately be brought up, if necessary, post-mortem and not at this time before this Court.”