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When Does a Person Have the Legal Capacity to Sign a Will?

In order for a will to be valid, a person must have “testamentary capacity.” This means they must be considered competent under the law and have the requisite mental ability to understand and execute a will. In most wills, this is not an issue because the decedent had no health issues when signing and the provisions of the will are in no way questionable. However, if the individual was suffering from a physical or mental illness and/or there were suspicious circumstances surrounding execution of the will, there could be objections during the probate process that the decedent lacked testamentary capacity. This is what happened in a recent case decided by the New York Appellate Division, Second Department. The Court addressed when a person has the legal capacity to sign a will. 

Typically, in determining testamentary capacity, the court will consider the following:

  1. Did the decedent understand the nature and consequences of executing the will?
  2. Did the decedent know the individuals who would be considered the natural objects of his bounty (i.e., his heirs) and/or his relationship to them?
  3. Did the decedent understand the full nature and extent of his assets at the time he made the will?

In Matter of Falkowsky, the decedent, Harold Falkowsky, died on January 14, 2015 at the age of 83. Just prior to that, he had been a patient in various hospitals uninterrupted since August 31, 2014. Approximately one month prior to his death while an inpatient at White Plains Hospital, the decedent signed a Will which left $20,000.00 each to his two sons and the balance of his estate (estimated somewhere between $1.5 and $2.5 million dollars) was left 50% to charity and the other 50% to his sister, Alice Sobol, who was named Executrix. One of the sons filed objections to the Will being admitted to probate based on undue influence by his aunt and his father’s lack of capacity. When the matter did not resolve, it eventually proceeded to trial. 

Ms. Sobol, the attorney who drafted the Will and the two witnesses to the Will (one of whom was the draftsperson’s law partner) testified that the decedent understood what he was doing at the time he signed the Will. However, the Surrogate Court judge found that the facts and circumstances surrounding the execution of the Will were somewhat suspicious and determined that Ms. Sobol had unduly influenced her brother at the time he signed the Will and that Mr. Falkowsky, given his medical condition on December 15, 2014, the day he signed the Will, lacked the testamentary capacity to validly execute a Will. The Appellate Division affirmed the decision.  The Court agreed with the Surrogate that the decedent did not actually understand the full nature and extent of his assets at the time he made the Will, and that this was sufficient to establish that he lacked testamentary capacity. 

Notably, it appears that the decedent met the first two criteria mentioned previously. He understood the nature and consequences of executing the Will and knew those who would be considered the natural objects of his bounty and/or his relationship to them. It seems, however, that the decedent’s apparent confusion regarding his assets was enough for the Court to determine that he lacked capacity.

There is little doubt that decedent’s health was failing at the time the Will was executed, and the Appellate Division concurred that the fact that Mr. Falkowsky had exhibited an “inability to follow instructions, disorientation, confusion, inability to benefit from education, impulsive behavior, and a potential to injure himself less than four hours before the execution of the purported Will” was a sufficient basis to uphold the objection and invalidate the Will.  

The lesson to be learned from this case is that if a loved one is infirm and would like to either have a will prepared or make changes to their current will, steps need to be taken to ensure that testamentary capacity can be established so the will is admitted to probate. For example, in Falkowsky, no doctor testified at trial regarding the decedent’s capacity meaning that the petitioner missed a potential opportunity to establish that the decedent had the requisite mental capacity.

If you or a family member needs to revise your current will, or, if you do not have one, please contact one of our estate attorneys.