In the Matter of the Application of Joel S. Kaplan, Esq., as Guardian for the Property Management of Angelina Militana, an Incapacitated Person.Petitioner Joel Kaplan, Esq., Property Management Guardian for Angelina Militana, moves by notice of motion for permission to transfer Mrs. Militana’s remaining property into a revocable trust. Mark Militana, the primary respondent, opposes the motion, arguing that Petitioner has no authority under Mental Hygiene Law §81.29 because the proposed trust would, in effect, invalidate and revoke Mrs. Militana’s Last Will and Testament.This Court, in a decision and order dated June 5, 2018, set this matter down for a hearing alongside a hearing on the issue of relocation. Having commenced the hearing on June 20, 2018, and completed the relocation portion, the parties agreed to discuss a resolution of all pending matters before the Court. In an effort to afford the litigants sufficient opportunity to discuss the outstanding issues, this Court adjourned the remainder of the hearing for two (2) weeks to allow the parties to try and reach a settlement. Unfortunately, this Court has not heard from any of the parties that a resolution has been reached amongst them, nor that they have even met and discussed settlement herein. Accordingly, this Court, after further review of the papers submitted, finds that a hearing is not necessary for the trust issue and the application is hereby denied in its entirety.Factual BackgroundAngelina Militana is a seventy-nine (79) year old woman who was adjudicated a Person in Need of a Guardian (PING) at a March 2016 hearing before Hon. Gary Knobel, A.C.C.J. A year later, Mrs. Militana was declared an Incapacitated Person. Although she has five adult children, due to discord amongst them, the Court appointed two independent guardians for her personal needs and property management.According to reports filed by Court Evaluator, James McGahan Esq., Mrs. Militana’s living expenses amount to approximately two hundred thousand dollars ($200,000.00) per year. At the time of her husband’s death in 2011, the couple owned twenty (20) income producing properties in New York, Queens, and Nassau counties. After his death, Mrs. Militana allowed many of the properties to suffer by way of failing to pay taxes, failing to pay bills, and failing to maintain the properties. As a result, the property guardian has had to sell several buildings to satisfy liens and prevent foreclosures. There are also several litigations ongoing regarding these properties.Mrs. Militana has a Last Will and Testament, dated August 9, 2010. As of the execution of that Will, Mrs. Militana had five (5) adult children and three (3) living grandchildren. However, since 2010, three (3) additional grandchildren have been born. In her Last Will and Testament, Mrs. Militana bequeaths, upon her death, specific properties to her children and grandchildren. However, because of the above described on-going financial issues, three of these properties have been sold in order to fund her care and pay her debts. As such, specific children and grandchildren have lost their opportunity to inherit from the Incapacitated Person.Petitioner’s PositionPetitioner makes this application to transfer Mrs. Militana’s remaining properties into a revocable trust. In doing so, Petitioner believes that he will be able to fund Mrs. Militana’s current and future needs, as well as pay her debts, without further harming the inheritances of her children and grandchildren. In the proposed trust, Petitioner would be able to sell any remaining buildings, and then, upon Mrs. Militana’s death, the remaining proceeds would be distributed to Mrs. Militana’s five (5) children and any grandchildren then living, with two-thirds allocated to her children, and one-third bequeathed to the grandchildren.Petitioner believes that this application is consistent with Mrs. Militana’s intention to provide for all of her then living children and grandchildren. Furthermore, Petitioner contends that the Last Will and Testament conflicts with her true intentions since three (3) additional grandchildren have been born following her execution of this Will. In addition, the Will did not contemplate the financial chaos that would confront Mrs. Militana shortly after the its execution. Petitioner also contends that the transfer of Mrs. Militana’s properties into a revocable trust would solve the problem of her children and grandchildren getting disinherited due to the nature of the Will.Respondent’s PositionPetitioner’s application is opposed by Mrs. Militana’s son, Mark Militana (hereinafter “Respondent”). In his opposition papers, Respondent argues that, by placing these properties into a trust, Petitioner is exceeding his powers as property management guardian. Respondent contends that this trust would, in effect, revoke or invalidate the prior Last Will and Testament. His papers cite Mental Hygiene Law §81.29(b) and (d) in support of his position, which state that the court shall not, invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.Respondent further claims that the goals of Petitioner’s application are based on the assumed facts that, at the time of her Will’s execution, Mrs. Militana wished to leave equal shares to her children, that the specific requests were of equal value, and that Mrs. Militana anticipated any appreciation or depreciation in value of the specific bequests. Furthermore, Respondent argues that it was never the intent of Mrs. Militana to consolidate her properties into a single estate, and bequeath it to her children and grandchildren in the proportional manner prescribed by Petitioner.Finally, Respondent makes two additional claims. The first claim is that this revocable trust would unjustly enrich the children who contributed to the current financial state of Mrs. Militana. The second claim is that this revocable trust is an attempt to settle two lawsuits currently pending in Supreme Court, New York County. Respondent believes that he will be disinherited completely if the Court were to approve this trust.DiscussionPursuant to Mental Hygiene Law §81.29, a court shall not invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person. While there is a limited amount of case law on this subject, it is settled that a Property Guardian does not have the authority to revoke a last will and testament. Matter of Lillian A., 307 AD2d 921, 762 NYS2d 899 (Mem) (2nd Dept. 2003). Yet, courts have found that there can be exceptions to that rule. See Matter of Shah, 95 NY2d 148, 711 NYS2d 824 (2000); Matter of Rita R., 26 AD3d 502, 811 NYS2d 89 (2nd Dept. 2006).In Matter of Lillian A., the trial court revoked the Last Will and Testament of an incapacitated person. 921, 900. The Appellate Division, however, modified the order after determining that, under Mental Hygiene Law §81.29(d), the Court did not have the power to revoke said Will. Id at 921, 899. An exception to this rule was made in Matter of Rita R. In that case, the Appellate Division allowed for the revocation of the Last Will and Testament of an incapacitated person, reasoning that the petitioner in that case provided ample evidence to suggest that, even though the document was written prior to the testator’s designation as an incapacitated person, she was, in fact, already incapacitated at that time. Matter of Rita R., at 90, 503.Another exception to this rule was made in Matter of Shah. This decision by the Court of Appeals held that the specifically enumerated potential powers of the New York guardian are unlimited and not contingent on the particular purpose for the transfer. Therefore, the guardian can make gifts, provide support for dependents and, simultaneously, and apply for government benefits. Furthermore, Pursuant to Mental Hygiene Law §81.21(a), a court may authorize a guardian to transfer a part of the incapacitated person’s assets to or for the benefit of another person on the ground that the incapacitated person would have made the transfer if he or she had the capacity to act. Matter of Shah, at 160, 830. The only limitation is that of the doctrine of substituted judgment; that is, the guardian’s actions must take into account the personal wishes, preferences, and desires of the incapacitated person. Id at 160, 831.Unlike in Matter of Rita R., Petitioner in the instant case, makes no argument suggesting that Mrs. Militana was incapacitated at the time that she executed her Last Will and Testament. Rather, Petitioner claims that Mrs. Militana lacked the requisite capacity to amend her Will as her financial, mental, and familial situations deteriorated. That argument, however, is insufficient to allow the Court to approve a revocable trust that would, in effect, nullify Mrs. Militana’s existing Will.Furthermore, the authorization of the application to transfer the incapacitated person’s assets in Matter of Shah can be distinguished from the instant case since the guardian there applied to transfer the assets of her husband, the incapacitated person, to herself in order for him to qualify for Medicaid, a transfer that would clearly provide a significant benefit to the incapacitated person. In addition, as stated by the Court of Appeals, “there can be no quarreling with the Supreme Court’s determination that any person in [the incapacitated person's] condition would prefer that the costs of his care be paid by the State, as opposed to his family.” Matter of Shah, at 160, 830.In the instant case, there is no apparent benefit to Mrs. Militana, nor is there clear and convincing evidence that a competent, reasonable individual in the position of the incapacitated person would be likely to create this revocable trust under the same circumstances. Mrs. Militana clearly stated in her Last Will and Testament exactly which properties she wanted to go to each child and grandchild then living. To transfer her assets into a revocable trust would completely frustrate her previous wishes. Petitioner has failed to offer any clear and convincing evidence that this proposed trust is in line with the testamentary intent that Mrs. Militana expressed in her Last Will and Testament. Therefore, it would be improper for this Court to approve such revocation or alteration of her Last Will and Testament by transferring her assets pursuant to Mental Hygiene Law §81.21.ConclusionMental Hygiene Law §81.29 clearly states that a property management guardian may not modify or invalidate a last will and testament, and this case does not fall into any acceptable exception. The proposed trust would not directly benefit to Mrs. Militana, nor would it result in her qualifying for additional government benefits. The only people impacted by this change would be her children and grandchildren, but there is insufficient evidence that Mrs. Militana, if she did have capacity at this time, would want to move her property into the trust nevertheless. Accordingly, this Court declines to approve of the proposed revocable trust and corresponding transfer of property and the motion is denied in its entirety.The Property Guardian shall file and serve a copy of this order upon all parties served with the underlying motion within thirty (30) days from the date of this order.This hereby constitutes the decision and order of this Court.DATED: July 17, 2018
