In re the Estate of Elkan

Appellate Division of the Supreme Court of New York

In re the Estate of Elkan

84 A.D.3d 603, 923 N.Y.S.2d 495

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 2011

StatusPublished

Cited by1 cases

This text of 84 A.D.3d 603 (In re the Estate of Elkan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Elkan, 84 A.D.3d 603, 923 N.Y.S.2d 495 (N.Y. Ct. App. 2011).

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Opinion

Decree, Surrogate’s Court, Bronx County (Lee L. Holzman, S.), entered July 16, 2009, which granted the objectant’s motion to deny admission of a will to probate, unanimously affirmed, without costs.

The proponent of the will failed to sustain his burden of showing that the testator possessed testamentary capacity when he signed the will, i.e., that he understood the nature and consequences of executing a will (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Coddington, 281 App Div 143 [1952], affd 307 NY 181 [1954]). The testimony of the disinterested witnesses demonstrated that the testator suffered from various ailments that significantly affected his mental capacity and, more specifically, that he was unable to make financial decisions and that he was likely not competent when he signed the will.

In light of the above, we need not reach the merits of the claim that the will at issue was the result of undue influence. This should not be interpreted to favor either party’s position on that subject. Concur — Tom, J.E, Mazzarelli, Renwick, Freedman and Manzanet-Daniels, JJ.

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Decree, Surrogate’s Court, Bronx County (Lee L. Holzman, S.), entered July 16, 2009, which granted the objectant’s motion to deny admission of a will to probate, unanimously affirmed, without costs.

The proponent of the will failed to sustain his burden of showing that the testator possessed testamentary capacity when he signed the will, i.e., that he understood the nature and consequences of executing a will (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Coddington, 281 App Div 143 [1952], affd 307 NY 181 [1954]). The testimony of the disinterested witnesses demonstrated that the testator suffered from various ailments that significantly affected his mental capacity and, more specifically, that he was unable to make financial decisions and that he was likely not competent when he signed the will.

In light of the above, we need not reach the merits of the claim that the will at issue was the result of undue influence. This should not be interpreted to favor either party’s position on that subject. Concur — Tom, J.E, Mazzarelli, Renwick, Freedman and Manzanet-Daniels, JJ.

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Bluebook (online)

84 A.D.3d 603, 923 N.Y.S.2d 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-elkan-nyappdiv-2011.

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