Godmother Appointed Guardian of 40 Year Old With Down’s Syndrome

guardianship attorney on Long IslandA guardianship action was brought before Surrogate Rita Melia in the Surrogate’s Court of New York County. This guardianship was brought pursuant to Surrogate’s Court Procedure Act Article 17(a). The purpose of the proceeding was to determine who should be appointed the guardian of R.H., a 40 year old who suffered from Down’s Syndrome. Both of R.H.’s parents were deceased. R.H.’s brother had appeared during the course of the hearing via video conferencing. This was necessary because he was imprisoned at the time of the hearing. Justice Melia found due to the brother’s incarceration and conviction of a felony he was disqualified from serving as R.H.’s guardian. The brother had filed a cross-petition requesting the court appoint a designee on his behalf as the brother’s guardian.

Substantial Assets in the Parent’s Estate

The court took into consideration the fact R.H. needed a guardian because he had inherited a substantial estate from his deceased mother. The court found the brother who was incarcerated was going to inherit the other half. The brother had submitted arguments claiming the godmother was unfit to serve as the guardian. The court found these arguments unsupported by the evidence. The evidence presented showed the godmother and her spouse had provided R.H. with a nurturing place to live in and attended to his daily needs and care since the death of the mother. The court therefore concluded it was in R.H.’s best interest the godmother be appointed as the guardian. This was also supported by the guardian ad litem who had prepared a report for the court. The court therefore appointed the godmother as guardian of both the person and the property of R.H. upon her duly qualifying.

elder law attorney on Long IslandElliot S. Schlissel is an elder law attorney. His law firm has extensive experience in handling guardianship cases under both Article 81 of the New York Mental Hygiene Law as well as Article 17-a of the New York Surrogate’s Court Procedure Act. He represents individuals in all aspects of guardianship proceedings throughout the Metropolitan New York area.

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Elliot S. Schlissel is a member of National Academy of Elder Law Attorneys.  He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Document Executed in Hospital Not a Valid Will

estate planning attorneysIn a matter which recently appeared before Surrogate John Czygier Jr. sitting in Suffolk County, the validity of a will was being questioned.

A man was in the hospital. He wrote a one page document in his own hand and signed it before going into surgery. The document named his long time companion as executrix and gave her the large majority of his assets.

Sons Object to This Document Being Accepted as a Will

The man died. His companion sought to probate this document as a valid will. The sons objected to it being accepted as a valid will. The document had been witnessed by two individuals who work for the hospital. Both of these individuals stated the decedent executed the document in front of them and was of sound mind.

Judge John Czygier Jr. stated in his decision when a will is executed under the supervision of a lawyer there is a presumption of it being valid. In this case it was not executed under the supervision of a lawyer and there is no presumption of its validity. Judge Czygier stated in his decision the witnesses did not know the document being executed was a will. No evidence was presented the decedent knew he was executing a will. The decedent referred to the document only as his “wishes.” In addition, Surrogate Czygier stated the testimony did not meet the minimum statute requirements of “publication” of the proposed will. In addition, the document did not have the statutorily required attestation clause. The judge therefore took the position the minimum statutory requirements for the execution of a will were not met and this instrument could not be probated.

estate probate attorney on Long IslandElliot S. Schlissel is an attorney with more than 35 years of experience representing clients regarding wills, trusts and estate issues.

Contesting a Will

Wills in the State of New York can be contested. The probating of the will by the executor of the will gives the potential contestants of the will the ability to appear in court and advise the court they are contesting the will. There are a number of grounds which can serve as the basis for contesting a will. Here are some of the grounds which can be asserted in a petition to the Surrogate’s Court to set a will aside:

  1. The will was not properly executed. For a will to be properly executed in the State of New York, it must be signed by the testator at the end and witnessed by two witnesses. At the time of the execution of the will, all three of the parties must be in the room at the same time. If the strict formalities under New York State Law concerning the execution of a will are not complied with, the will can be set aside.
  2. The will is a forgery. A forged will is a will executed by someone other than the testator who seeks to create the will. With wills prepared by law offices it is extremely difficult to allege a forgery defense in the courts in New York. However, wills which are prepared by the testators themselves, or by individuals or by other parties who are not lawyers, have a greater potential at being challenged as forgeries.
  3. Lack of testamentary capacity. The person who is having the will prepared must be competent on the date the will was executed. Challenges for lack of capacity can be based on the person writing the will having Alzheimer’s disease, dementia, mental illness or that they were taking prescription or non-prescription drugs which would have prevented them from having a clear mind and being capable of making decisions related to the distribution of their assets and/or to their loved ones in a will.
  4. Undue influence, fraud or duress. In each of these situations the person writing the will may have been deprived of the independent ability to make their own decisions with regard to the terms and conditions in the will.

Purpose of Probate

The purpose of the probate process is to determine the validity of the will. When the will is determined to be valid, properly executed, and/or there are no challenges to the will, the court will accept the will into probate, appoint the executor and let the executor move forward with the payment of debts, obtaining the estate’s assets, and distributing the assets to beneficiaries.new york estate planning and probate attorney

Copy of Will Denied Probate

In a decision by New York County Surrogate Court Judge Rita Melia, Judge Melia found a copy of a will could not be submitted to probate. There is a presumption when the original will cannot be found that it was revoked by the person who made the will destroying it.

An uncontested action was submitted to Surrogate Melia. It was claimed the original will was lost. A copy of the will had been maintained by the attorney draftsmen, and said copy was submitted to be probated.

Presumption of Will’s Destruction

Justice Melia found in her decision where the decedent was the last person to have custody and control of the original will, and it could not be found at the time of that individual’s death, there is a presumption under New York Law the individual destroyed the will which constituted a revocation of the will. Justice Melia stated the law in New York is that this presumption was rebuttable only by clear and convincing evidence.

Attorney Draftsman Seeks to Have Will Probated

In this case, the attorney draftsman submitted an affidavit to the court. The affidavit indicated he was a close friend of the decedent. He was also a business associate for more than 20 years of the decedent. He and the decedent maintained constant contact during the past 20 years. The attorney stated in his affidavit in the event the decedent had decided to revoke the will he would have been contacted and a new will would have been drafted. He reached the conclusion since the decedent didn’t contact him, the will was lost and not destroyed and a copy of the will should be submitted to probate.

Surrogate Melia Denies Probate To the Copy of the Will

Justice Melia found the affidavit of the attorney draftsman was not sufficient to provide the court with clear and convincing evidence to overcome the presumption the original will had been revoked by destruction by the decedent. Justice Melia therefore denied probate of the copy of the will.

Probate: How Does It Work?

estate planning lawyerProbate refers to a court supervised system that is set up to insure that wills presented are authentic, not obtained under fraud or duress, and properly prepared and executed. The property inherited through a will is subject to the probate process.

There are other types of property that pass outside of a will. These assets are referred to as testamentary substitutes. Examples of these assets are joint bank accounts, annuities, life insurance, pensions and 401(k)s (provided they have beneficiary designations).

Probating a Will

Probating a will deals with the process by which a will is shown to the court and reviewed by the court for being properly executed and being considered valid to control the distribution of the assets contained in the will.

Avoiding Probate

Probate can be avoided. The primary methods of avoiding the probate process is by making gifts during your lifetime, putting your assets in trusts that avoid the probate process, or having assets subject to the right of survivorship.

Contesting Probate

During the course of the probate process, individuals who are blood relatives are notified that a will is being probated. In cases where blood relatives feel that they have been disinherited without just cause or reason, they can retain counsel to challenge the probate process and investigate the circumstances and events surrounding the preparation and execution of the will.

The Executor

A will names a person to handle the final funeral arrangements, and distribute the assets pursuant to the terms of the will. This individual is referred to as an executor.

Distribution of Assets

After a will is probated, the executor’s responsibility is to find all the assets, obtain them, put them into an estate account and thereafter distribute them. However, assets cannot be distributed for the first seven months after the will is probated. The purpose of this is to give creditors sufficient time to file their claims against the estate.

Questions About Probate?

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Divorce Then Death

estate attorneys on long islandSurrogate Robert Gigante sitting in the Surrogate’s Court of Richmond County, New York, recently had an unusual case come before him. A husband and wife had been involved in a divorce lawsuit in the Supreme Court. The parties had entered into a stipulation of settlement. The stipulation provided that both parties released and discharged their respective claims in each other’s estates and agreed to the distribution of real property owned by them. During the course of the Supreme Court divorce proceeding, the judge before whom the case was presented, ordered the wife was granted a judgment of divorce. The judge then directed the wife’s attorney to settle the judgment of divorce within sixty days or the divorce lawsuit would be deemed abandoned. Unfortunately, the wife died. Her attorney did not submit the judgment of divorce within the 60 day period pursuant to the judge’s instruction. The divorce was therefore deemed abandoned.

Probate Proceeding

A probate proceeding was initiated. The wife’s husband brought an application in the probate proceeding before Surrogate Gigante to have his rights determined. His position was the stipulation of settlement was not valid because the divorce proceeding was abandoned.

The wife’s sister brought an application to cause the Surrogate’s Court to enforce the terms of the stipulation of settlement. The stipulation had been signed by both parties prior to the wife’s death. The three children of the marriage also supported the sister with regard to her application to the Surrogate. Surrogate Gigante in his decision stated he could not render a decision on motions for summary judgment regarding these issues. (Each party had brought a motion for summary judgment claiming there was no issue of fact with regard to their being completely correct in their position).

Can the Stipulation in the Divorce Case Survive the
Abandonment of the Divorce Lawsuit?

Surrogate Gigante indicated in his decision issues of fact existed and there was a question whether the stipulation of settlement in the divorce case survived the “abandonment” of the divorce lawsuit. He questioned whether only a portion of the divorce action had been abandoned. He also raised the issue the husband could have been found to have ratified the stipulation of settlement by complying with its terms. Based on the aforementioned, Judge Gigante held this case would have to move towards a trial with regard to the various issues presented.estate planning and litigation assistance

No Contest Clauses in Wills

long island estate attorneysThe formal name for a no contest clause in a will is called an “in terrorem” clause. The purpose of this clause in a will is to prevent a beneficiary from challenging the will.

How No Contest Clauses Work

No contest clauses have to be set up in a will in a manner which gives them teeth. The way it usually works is a beneficiary to the will is left a certain amount of money or assets. This is usually significantly less than said beneficiary hopes to receive. A clause is then written into the will which states in the event said beneficiary challenges the will, he or she loses the money or property left to him or her. This is done to de-motivate this individual from challenging the will.

Challenging a Will

People writing wills often want to leave certain potential beneficiaries either nothing or such a nominal amount which would render this clause ineffective. In the event you seek to avoid a certain potential beneficiary from challenging a will, you should discuss with the attorney draftsman of the will how much would be necessary to leave this potential beneficiary in the will to make a no contest clause workable. If you wish to leave this potential beneficiary nothing or virtually nothing in the will, you would be better off not having a no contest clause placed in the will. It simply won’t work and would provide the challenging party certain legal strategic advantages in the event the will is challenged.


If you wish to disinherit someone, you should meet with an experienced wills and estates lawyer and discuss with the attorney how much it would be necessary for you to leave this potential beneficiary in the will to make the no contest clause a workable solution to disinheriting this person and reducing the likelihood he or she will challenge the probate of the will.assistance preparing wills and trusts

Daughters’ Objections Ruled Non-Valid: Will Admitted to Probate

estate planning lawyerSurrogate Court Judge Peter Kelly, sitting in Queens County Surrogate Court, recently had a case presented to him where children of a decedent were challenging the validity of a will. The daughters claimed their parent could not read or write in the English language. They also claimed the will was not properly executed. The executor submitted evidence of the affidavits of the attesting witnesses which stated the decedent could read and write in the English language, and the will had been properly executed. The court took the position this created a presumption the will had been properly executed. In addition, the executor submitted other evidence including a self-proving affidavit and testimony the decedent was actually able to read, write and speak at the time of the execution of the will by the attorney draftsman and the witnesses to the will. In addition, testimony was submitted that the decedent did not suffer from any mental or physical illnesses or impairments at the time the will was executed.

Affidavits of Attesting Witnesses

The daughters had submitted affidavits to the court from attesting witnesses of an earlier will of the decedent. The affidavit of the attesting witnesses regarding the earlier will also stated the decedent could read, write and speak in the English language and had no sight, hearing, or other defects. This was in contradiction of their current position concerning the will sought to be probated.

No Triable Issue of Fact

Judge Kelly found the daughters of the decedent did not raise a triable issue of fact concerning the issue of the decedent’s capacity to enter into the will and the due execution of the will. Their objections were dismissed because they did not produce evidence sufficient to raise any questions of fact concerning the decedent’s testamentary capacity, the appropriateness of the execution of the will, or whether undue influence was exerted against her. The will was therefore admitted to probate.estate litigation assistance

A Challenge to the Administration of an Estate is Denied: The Latter Marriage Held to be Valid

wills preparation and litigation attorneySurrogate Edward McCarty, III, sitting in Nassau County Surrogate’s Court, recently had a case before him involving issues concerning the validity of a marriage.  A man had died and an administration proceeding was brought in the Nassau County Surrogate’s Court.  The petitioner in this administration proceeding was named Aquije.  She was the surviving spouse of the decedent.

The decedent had children from a prior marriage.  They filed objections to the administration proceeding.  They claimed that their father was originally married in 1969 in Chile.  They also claimed that this Chilean marriage was still valid because there was never a divorce.  Therefore, they claimed the marriage to Aquije was not valid because at the time of the marriage their father was still married.

Judge McCarty held a hearing with regard to the issues presented in this case.  At the time of the hearing the marriage certificate concerning the 1969 Chilean marriage was submitted as well as death certificates which listed Aquije as the surviving spouse of the decedent.  Aquije also presented into evidence the marriage certificate from New York State showing that she was married to the decedent in 1997.

Judge McCarty’s Decision

Judge McCarty found the decedent had been married on four occasions.  He also found the decedent lived with Aquije from 1997 for a period of 14 years until his death in the year 2011.  He ruled there were two ceremonial marriages.  He stated in his decision there is a strong presumption the latter marriage was a valid marriage.  He went on to state in cases involving issues concerning the invalidity of the marriage, those individuals challenging the marriage had to meet a high burden of proof.  Judge McCarty’s decision was the objections that were filed concerning the administration proceeding did not overcome the strong presumption that Aquije was married to the decedent for fourteen years.  The objections were therefore dismissed and the administration proceeding was allowed to move forward.

estate planning and administrationElliot S. Schlissel is an attorney who has been litigating estate issues for more than thirty five years.  Elliot drafts wills.  He probates wills.  He litigates issues concerning the validity of wills.  He is available for consultations.