Richmond County Surrogate Robert J. Gigante has ruled that a trust executed by an 88 year old decedent 61 days before her death was void for lack of mental capacity in the Matter of the Estate of Muriel Donaldson reported at 956 NYS2d 840. In this matter, the court granted summary judgment based upon the testimony of the decedent’s physician and the drafting attorney.The court takes pains in its decision to differentiate between fraud, lack of capacity and undue influence, dwelling particularly on the difference between testamentary capacity and the level of capacity needed to understand a contract.
One need not have a high level of capacity to make a will. In fact, it is well-settled law that minimal capacity is required to do this. Normally, a will is executed in the presence of witnesses and the attorney drafter who leads the testator through the rite of due execution. A series of formal questions are asked of the testator who avers to have read the will and to understand it in the presence of the witnesses who have had the opportunity to observe the byplay between the testator and attorney and who then execute an affidavit that the testator understood the terms and conditions of the will, knew the extent and objects of his or her bounty and wanted the witnesses present during the will signing.
The trust in this matter is a far more complex document than a will. It requires a much higher level of capacity to understand its personal, legal and tax ramifications just to mention a few things. The court here saw the decedent as lacking sufficient mental capacity to understand the trust and ruled accordingly.
A motion for summary judgment cannot be granted where the court finds that there are any triable issues of fact. In the absence of compelling documentation and testimony, these motions rarely succeed. Here the court took note of the testimony of decedent’s physician who contradicted an early letter by stating that he did not believe the decedent lacked the cognitive ability needed to understand the trust. The court further noted a lack of sufficient rebuttal to this testimony by the petitioner who merely took the position that this testimony was not enough to defeat a motion for summary judgment.
The final result of all of this is that the court directed that the trust property be returned to the estate to be distributed pursuant to the laws of intestacy. That, however, depends upon whether or not this decision will be appealed and what the result of this appeal may be. No sure thing where a motion for summary judgment is concerned so watch this space for further developments.