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A layperson is apt to consider the phrase “pre-death (or ante-mortem) probate” an oxymoron; after all, a will does not take effect until death. The procedure, which is provided for by statute in three states 1 enables a testator to seek during lifetime a declaratory judgment as to the validity of a will he or she executed. New York has rejected similar proposals to provide for pre-death probate. The enactment of �81.29(d) of the Mental Hygiene Law (MHL) in April 1993 caused some to wonder whether the Legislature authorized pre-death probate as an incident to a guardianship proceeding. MHL �81.29(d) provides in part as follows: If the Court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, . . . contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, . . . or disposition during lifetime or to take effect upon death, was made while the person was incapacitated (emphasis added). The statute does not include a will among the instruments subject to revocation by the supreme court. As we will discuss, the few decisions that examine whether a will is included under the authority granted to the courts by MHL �81.29 are inconclusive. Protecting Against Abuse The authority of the supreme court to revoke a contract, conveyance or transfer made during the lifetime of an incapacitated person is necessary for many reasons not the least of which is to protect the incapacitated person from abuse. (Consider the authors’ recent article in which we discussed the increasing incidence of abuse by agents pursuant to a power of attorney.) Knowledge of the incapacitated person’s estate plan is crucial in determining whether to grant a guardian certain powers under MHL �81.21, particularly the power to transfer assets. Contracts, conveyances or transfers may also impact a guardian’s selection of which assets to utilize when paying the incapacitated person’s expenses. Assuming arguendo that a will is included among the instruments subject to revocation in a guardianship proceeding, the inquiry does not end there. As Surrogate Eve Preminger held recently in Matter of Rosah Socolow (The New York Law Journal, Sept. 1, 2004), a determination by the Supreme Court of the invalidity of an incapacitated person’s will is not binding in a subsequent surrogate’s court proceeding upon any party who was not provided a full opportunity to be heard on the issue. The holding in Socolow could easily extend to a determination by the Supreme Court as to the validity of a transfer as applied to a subsequent discovery proceeding in the surrogate’s court. With the increasing use of nontestamentary assets as a means of transferring property, it is important that we consider the holding of Socolow. Before Socolow, the supreme court decisions that addressed the revocation of a will under MHL �81.29(d) were inconsistent and did not take into account whether such a holding would be binding upon the surrogate’s court. Matter of Ruby Slater (NYLJ, Feb. 11, 2002, Supreme Court, Queens County), involved a guardianship proceeding commenced by the Commissioner of Social Services (DSS). The proceeding was challenged by Ms. Slater’s home care aides who sought their appointment as guardians. The home care aides were subsequently named as agents in a power of attorney prepared by their attorney and signed by Ms. Slater. The same attorney drafted a will for Ms. Slater under which the attorney was named the executor and the two agents (her clients) the sole beneficiaries. Following a hearing, the court appointed an independent guardian for Ms. Slater, revoked all fiduciary related documents including the power of attorney, and vitiated Ms. Slater’s will in what Justice Charles J. Thomas described as “an extraordinary step.” The court found that the evidence adduced at the hearing established that Ms. Slater lacked testamentary capacity when she signed the will and that it was procured as a result of “extraordinary undue influence” exercised by the two agents and their attorney. The attorney draftsperson’s subsequent appeal of the revocation of the will was dismissed on the ground that she lacked standing. 2 The Appellate Division did not speak to the issue of whether the Supreme Court had the authority to revoke the incapacitated person’s will. ‘Matter of Lillian A’ Within months of the Slater dismissal, the Appellate Division, Second Department, held in Matter of Lillian A, 307 AD2d 921 (2003) that in a proceeding for the appointment of a guardian under Article 81 of the Mental Hygiene Law “[t]he Supreme Court did not have the authority to revoke the last will and testament of Lillian A.” The appellate division modified the order of the supreme court by deleting the provision that revoked the incapacitated person’s will. While the holding in Lillian A appears clear, one might argue that the appellate division’s decision is limited to the facts of that case. Unfortunately, the facts of Lillian A are not set forth in the decision and there is no lower court opinion. Socolow implies that the Supreme Court has the authority under MHL �81.29(d) to determine the validity of a will. But such authority is limited to a determination that the incapacitated person lacked testamentary capacity at the time the instrument was executed. Uncontested Proceeding Socolow 3 began in supreme court as an uncontested guardianship proceeding under Article 81 of the MHL and resulted in the appointment of two guardians, Mark (the spouse of Rosah’s niece-in-law) and Brenda (the daughter of Rosah’s good friend). Rosah’s niece, Carole, subsequently sought to remove the co-guardians on the ground that they engaged in self-dealing by procuring a will executed by Rosah on Jan. 7, 2001 under which she gave $25,000 to a charity and disposed of the residuary equally between Mark’s wife (Rosah’s niece-in-law) and Brenda (the co-guardian). The draftsman of the will served on the board of the charitable beneficiary. Following a hearing, the supreme court found that the coguardians breached their confidential relationship to Rosah by obtaining the 2001 will for their personal benefit. The guardians were removed. 4 Justice William P. McCooe specifically noted in his decision that the proceeding before him was not a will contest, a matter he remarked was best left to the surrogate’s court. Two months later, Justice McCooe rendered a second decision, on a motion to renew and reargue, in which he found that the Jan. 7, 2001 will was invalid on the ground of undue influence. 5 Rosah Socolow died on March 2, 2004. The 2001 will and an earlier 1986 will were offered for probate in the New York County Surrogate’s Court. Proponents of the 1986 will moved to dismiss the petition to probate the 2001 will arguing that the Supreme Court’s invalidation of the 2001 will collaterally estopped the proponents of the 2001 will from probating the instrument in surrogate’s court. In denying the motion, Surrogate Preminger presented an illuminating treatment of the complex subject of collateral estoppel. Collateral estoppel operates to bar a party from re-litigating an issue of fact previously determined by a judgment in a proceeding or action between the same parties. While this statement of the principle is straight forward, the surrogate notes that the doctrine is flexible and can never be rigidly or mechanically applied. Under the surrogate’s court holding of Socolow, a prior supreme court determination as to the validity of a will does not preclude a subsequent will contest in surrogate’s court if all parties necessary to the will contest were not served in the supreme court proceeding and provided “a full and fair opportunity to be heard.” When making a determination as to the applicability of collateral estoppel, Surrogate Preminger noted that the court must find that the prior determination “should be given conclusive effect beyond the case in which it was made . . . . (citation omitted).” Given the significant differences between a guardianship proceeding and a probate proceeding, it appears highly unlikely that collateral estoppel would preclude a subsequent will contest. U.S. Supreme Court A century ago, in Keely v. Moore,9 U.S. 38 (1904), The U.S. Supreme Court reflected upon the fundamental difference between a determination of capacity in a lunacy proceeding and a will contest stating “[the lunatic] may have been insane to the extent of being dangerous if set at liberty, and yet may have had sufficient mental capacity to make a will, to enter into contracts, transact business and be a witness.” That principle applies equally today. The standard of testamentary capacity in a will contest is not the same as the standard applied in a guardianship proceeding. Indeed, MHL �81.29(b) states that the appointment of a guardian shall not be conclusive evidence of the incapacitated person’s lack of testamentary capacity. Under the MHL, the standard of incapacity necessary for the appointment of a guardian for an incapacitated person is not fixed and depends entirely upon the facts of a particular case. Flexibility is at the heart of New York’s guardianship statutes. Consider the language of �81.01 in which the Legislature recognizes that “the needs of persons with incapacities are as diverse and complex as they are unique to the individual.” The Socolow court suggests that MHL �81.29(d) does not provide for revocation of a will on the ground of undue influence. Of course, the supreme court could exercise its plenary powers under our State Constitution to make a determination of undue influence in a guardianship proceeding. However, as Surrogate Preminger points out, undue influence exerted by a guardian on an incapacitated person/testator “does not lead inexorably to a conclusion that the will is invalid.” A party to a probate proceeding may seek partial probate to excise only one provision alleged to have been procured as a result of undue influence, thus leaving the remainder of the will intact. The prospect that a party may seek different relief in a will contest militates against the application of collateral estoppel. As a general rule, the objective of a guardianship proceeding differs from that in a probate proceeding. In a guardianship proceeding, the court is solely concerned with the incapacitated person’s best interests and crafting a plan to best meet the incapacitated person’s personal and property needs. Notice of the proceeding is usually restricted to such relief. Evidence presented at a hearing on the need for the appointment of a guardian should relate to that objective. Where a dispute arises in a guardianship proceeding over a transfer, contract or fiduciary appointment, the scope of the supreme court’s inquiry is likely to be restricted to what is in the incapacitated person’s best interests and what result will achieve the least restrictive invasion of the incapacitated person’s independence. Notice and an opportunity to be heard are the basic tenets of our judicial system. Absent explicit notice, a person interested in an incapacitated person’s estate may not actively participate in a guardianship proceeding. A party is likely to rely upon the stated purpose of the guardianship proceeding, which is to establish a plan to assist the incapacitated person in meeting his or her “personal and property management needs” (MHL 81.01). Following the incapacitated person’s death, the persons interested in the probate proceeding may differ from those interested in the guardianship proceeding, thus entitling them to an opportunity to be heard. The relief requested in the supreme court proceeding in Socolow was for the removal of the coguardians on the ground that they acted in their own self-interest by procuring a will for their benefit. The beneficiaries under the 2001 will had no reason to believe that their future beneficial interests were at risk. Absent a full and fair opportunity to be heard, Justice McCooe’s finding in his second decision that the 2001 will was invalid cannot operate to bind the parties in a subsequent will contest in the surrogate’s court. Socolow provides us with a sound rule of law. Collateral estoppel will not bar a party to a guardianship proceeding in supreme court from a post-death determination as to the validity of a will in a subsequent will contest, if there was no notice that the validity of a will was at issue, or, if the party did not have a full and fair opportunity to be heard on the issue of the validity of a will. Prior to Death? Could there be a case where a party to a guardianship proceeding is collaterally estopped in a probate proceeding? Stated another way, does MHL �81.29(d) permit a person’s will to be contested prior to the person’s death, as is the case in three of the 50 states. As noted above, the few decisions are inconclusive. Surrogate Preminger observed in Socolow that “the statute [MHL �81] strongly suggests that any finding of invalidity of a will in the context of an Article 81 proceeding is to be made only if the court specifically finds that the incapacitated person lacked the capacity to make a will at the time the will was executed.” This dicta, coupled with the court’s holding, certainly suggests that the surrogate thinks that MHL �81.29(d) does confer authority upon the supreme court to conduct a pre-death will contest on the issue of testamentary capacity. Public Policy Question The question of whether pre-death will contests are authorized under MHL �82.19(d) is a very important public policy issue. The holding in Lillian A, Ruby Slater and Socolow have created an inconclusive state that the Legislature should resolve. For what it may be worth, the authors believe that will contests should not be determined pre-death, but should be left to the expertise of the surrogate’s courts in post-death proceedings. Important rights are involved in a post-death will contest, not the least of which are the rights of the parties to a jury. Also, the pre-death invalidation of a person’s will in a guardianship proceeding would seem to preclude the person from making a subsequent codicil during a lucid interval. Issues essential to a will contest may be irrelevant in a guardianship proceeding. A pre-death will contest in a guardianship proceeding may become unwieldy. Imagine if all of the persons interested under an incapacitated person’s will and her distributees were necessary parties to the guardianship proceeding and called upon to litigate for or against the ambulatory will. The very nature of the guardianship proceeding would change from a focus on the incapacitated person’s best interest to a determination of the interests, if any, of the beneficiaries of the incapacitated person’s estate. Discovery may be burdened with ancillary issues that do not further the incapacitated person’s best interests and disclosure could be governed by rules particular to a will contest and unrelated to the guardianship proceeding. If the objective of the MHL is to ensure flexibility and minimum intervention for an incapacitated person, then every effort should be made not to restrict the incapacitated person’s freedom of testation. MHL �81.01 informs us of the goal of Article 8, “to make available to [the incapacitated person] the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable” (MHL �81.01). While the supreme court may need to consider the provisions of an incapacitated person’s will, and whether they should be given effect when customizing the guardian’s powers, it need not vitiate the instrument to achieve such result. The ultimate issue as to the validity of an incapacitated person’s will belongs in the surrogate’s court and “the vast experience it brings to bear in a traditional plenary probate proceeding” (see, Socolow). Charles F. Gibbs a partner at Holland & Knight, is the chair of the Trusts, Estates and Surrogate’s Courts Committee of the Association of the Bar of the City of New York and a regent emeritus of the American College of Trust and Estate Counsel. Colleen F. Carew, a partner at Schram & Carew, is the treasurer of the Trusts and Estates Section of the New York Bar Association and is a fellow of the American College of Trust and Estate Counsel. She has served as court-attorney referee with the Surrogate’s Court, New York County. Endnotes: 1. Arkansas, North Dakota and Ohio have enacted antemortem probate statutes. 2. Matter of Slater, 305 AD2d 690, 759 NYS2d 885 (2d Dept. 2003) 3. In the interest of making full disclosure, the Public Administrator, a client of the firm Schram & Carew PC, was made a party to the subsequent proceeding in surrogate’s court. Schram & Carew did not file any legal papers concerning the issue before the court. And, a client of the firm of Holland & Knight has argued in a pending supreme court proceeding that Matter of Lillian A holds that the supreme court does not have authority under MHL �81.29d to revoke wills of incapacitated persons during their lives. 4. Matter of Socolow, File No. 500223/99, is an unreported decision, rendered by Justice McCooe, Supreme Court, New York on Oct. 17, 2002. 5. Justice McCooe’s second decision, rendered on Dec. 13, 2002, was not reported.

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