The Third Department of New York’s Supreme Court Appellate Division has handed down an interesting opinion on testamentary capacity. In the Matter of the Estate of Albert L. Friedman, reported at 809 N.Y.S. 2d 667(A.D. 3 Dept 2006), it was established that the decedent was diagnosed with progressive dementia.

The court significantly noted that dementia does not in and of itself create a triable issue of fact as to testamentary capacity and does not preclude a finding thereof. In the trial on the objections as to testamentary capacity, two professionals opined that the decedent was competent to sign his will. One was a licensed psychologist who had conducted a neuropsychological examination of the decedent’s cognitive function. The other was a board-certified neurologist who had treated the decedent for over three years. Also, the attesting witnesses testified that he appeared competent to do so.

The court also noted that assertions of the objectants that “the very magnitude of the will, coupled with decedent’s declining mental health, evinces fraud in securing his signature and that, based upon his declining mental health, he may well have been unaware of his potentially disinheriting his older children was merely speculative and did not rise to the level of specificity needed to establish undue influence. The court concluded by dismissing the objections to the petition.