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THE PROPONENT OF THE WILL DID NOT DEMONSTRATE DECEDENT KNEW THE NATURE AND EXTENT OF THE PROPERTY HE WAS DISPOSING AT THE TIME THE WILL WAS EXECUTED (SECOND DEPT).

The Second Department, over a strong dissent, determined that Alice, the decedent’s sister, did not prove the decedent knew the nature and extent of the property he was disposing at the time the will was executed:

Alice testified that the decedent told her his total assets amounted to $200,000. The decedent then told the attorney who prepared the will that his total assets amounted to $1.5 million, when in fact, with the annuity, his assets, including nonprobate property consisting of an IRA in the amount of $258,299, are valued at more than $2.6 million. This amount does not include the CDs the decedent claimed were held in trust for his grandchildren, which are not listed on the inventory of assets filed with the Surrogate’s Court. * * *

On the day he executed the will [December 15], the 83-year-old decedent, who had stage IV prostate cancer, had been a patient at WPH for two weeks, since December 1, 2014. He was admitted with a fever, generalized weakness, pneumonia, bilateral pleural effusion, and a 30-to-40-pound weight loss over the prior three to four months. During those two weeks, he had a choking incident on December 4, which caused respiratory and cardiac arrest and resulted in intubation and transfer to the ICU, and a second incident on December 13, two days prior to executing the will, during which he developed respiratory arrest, was transferred to the CCU, and was sedated with morphine. At times, during the day before he executed the will, as well as on the morning of the day of the execution, the decedent exhibited an inability to follow instructions, disorientation, confusion, inability to benefit from education, impulsive behavior, and a potential to injure himself. On both the day prior to the execution of the will and the day the will was executed, the decedent was intubated and on a ventilator and unable to speak. The decedent was also sedated with lorazepam the day before the execution of the will. Matter of Falkowsky, 2021 NY Slip Op 05122, Second Dept 9-29-21

 

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