Mental Capacity and Marriage in New York, Part 1: Background to the Issue

In New York, a person is presumed to have the mental capacity to marry.  But the standard that defines the mental capacity to marry is very low.  The mental capacity required to marry is lower than testamentary capacity, or the capacity to make a Will.  In turn, testamentary capacity is lower than the mental capacity required to execute a contract.  To put this into perspective, New York requires greater mental capacity to sign an apartment lease than it does to marry someone.

The U.S. Constitution also protects an individual’s right to marry.  The U.S. Supreme Court has affirmed that the right to marry is a fundamental right.  In Loving v. Virginia, 388 U.S. 1, 12 (1967), the Court held that the Due Process Clause includes a constitutional right to marry because “freedom to marry has long been recognized as one of the vital personal rights essential to the pursuit of happiness by free men.”  In addition, the Full Faith and  Credit Clause in Article IV requires states to credit the “public Acts, Records, and judicial Proceedings” of sister states, including marriage.

A marriage in New York results in two separate outcomes:  the marriage itself, and the property consequences that flow from the marriage.   As we will see in this series, there is a loophole in the law that has permitted some unscrupulous individuals to take advantage of elderly individuals with diminished capacity.  That is because, while the marriage itself may be annulled or broken, the property consequences of marriage are not necessary severed as a consequence.  As we will see in this series, that can result in unintended estate consequences for heirs and distributees, particularly in the area of  so-called “deathbed” marriages.

Arguably,  the property rights that flow from marriage are much greater than they are for signing an apartment lease even though the mental capacity required to enter into a marriage is significantly lower.  Federal property rights that flow from marriage include such things as Social Security survivor benefits for a spouse, and spousal survivorship rights for qualified retirement plans under the Employee Retirement Income Security Act (ERISA) that can only be waived in writing.

Among the New York State property rights for spouses is the right to title property in a tenancy by the entirety. Neither spouse can sell or diminish the 100% share that each owns without the consent of the other.  Should a creditor obtain a lien on one spouse’s interest in the property, the lien will only survive if the debtor spouse is the surviving spouse.  Otherwise, the lien is extinguished with the death of the debtor spouse.  Moreover, the property cannot be reached in a bankruptcy proceeding.   New York also has an elective share statute, meaning that a surviving spouse can elect to one-third of the decedent spouse’s estate against the decedent’s Will if there is surviving issue, or one-half of the property if there is no issue.  Even if there is no Will, New York’s intestacy statutes provide that a surviving spouse will receive at least one-third of the decedent’s property.

In New York, a marriage can be void from the start (ab initio) due to such reasons as bigamy or an incestuous marriage.  In such a case, the marriage is a legal nullity:  it never existed from the start.  The spouse, the State, or an interested third party can attack the marriage directly or collaterally in court on the ground that it is void.  The attack can even take place after the death of one or both spouses.  Note that diminished mental capacity is not a ground for voiding a marriage in New York.

A voidable marriage is valid for any civil purpose unless it it attacked by one of the spouses in an action for annulment.  The grounds for deeming a marriage as voidable include fraud, duress, temporary or permanent mental incompetence, undue influence, and sham.  As concerns mental incompetence in the case of a voidable marriage, Domestic Relations Law § 140 [c] provides that “[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage.” 

Even if a third party should succeed in proving that there was sufficient evidence of diminished capacity before the marriage took place (for instance, with documented medical evidence showing dementia), the surviving spouse of an annulled marriage may still take against the Will under the right of election or under intestacy.   The property stakes are high when one enters into a marriage.  They are even higher for the children of aging parents with diminished capacity who find themselves (and their property) prey to unscrupulous persons who will marry them (sometimes in secret) in order to obtain the federal and state property benefits that flow from marriage. 

In this series, we will look at how New York courts have dealt with the issue of mental capacity and marriage, especially in cases where the results have been egregious. I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.   Thank you.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

When Is the Best Time To Make or Review Your Will?

If you have been asking yourself these questions, the answer is likely “now.”  There are several reasons why you may not want to wait.  The most obvious one is that tomorrow is promised to no one.  The second reason is that it is a good practice to review the terms of your Will on a yearly basis to assess the consequences of changes in family composition, financial updates, and changes in the tax law that may affect your estate.  The third reason is one that is often overlooked, that you may not always have the testamentary capacity to make a Will.   I have covered this topic in a previous post.

Making or changing a Will is a serious endeavor, and it should never be undertaken for negative reasons, such as to spite a relative or friend.  In New York, the making of a subsequent Will executed with all required formalities constitutes a revocation of any previously executed valid Wills and their codicils.  In New York,  a partial revocation by physical act, such as words added to a Will after it has been signed and witnessed, is not recognized and will have no effect on the Will.

A Will can also be revoked if it is destroyed by a physical act.  If the subsequent Will is later destroyed by a physical act, such as cutting it up or burning it or crossing out the testator’s signature, the prior Will that it replaced will not be revived in New York.  The earlier Will is legally invalid, and the decedent will have died intestate.

The case of Mabel Waingrow of Blooming Grove, New York provides a cautionary tale.  The owner of Town & Country Coffee Shop on Route 94, Waingrow died in 2003 at the age of 99 leaving an estate valued at $990,000.  She had outlined her husband, her son, and her siblings.  Her closest relatives were her five great-nieces and -nephews whom she never knew because they lived abroad.  A diligent attorney who prepared Waingrow’s Will in 2000 had discovered the distant relatives.

Waingrow had closed her coffee shop when she had turned 90, and without the constant social interaction she soon became a lonely recluse, beset by thoughts that people were trying to steal from her.  To her rescue came Nick Stagliano, a former criminal investigator for the Orange County District Attorney’s Office who befriended her and took care of her.    According to a story in the local Times Herald-Record, Stagliano was the only one present for her 99th birthday.

In 2001 Waingrow, who had a habit of writing a new Will to benefit whoever was friendliest to her and to spite those who had “unfriended” her, executed a new Will naming Stagliano as the sole beneficiary of her entire estate.  The next day, the Orange County Court named him Waingrow’s legal guardian because she could no longer take care of her affairs.  Her great-nieces and -nephews were not informed of this appointment.

Five years after her death, one of her grand-nieces filed suit contesting the Will claiming undue influence . The case was settled shortly after the trial began.  Waingrow’s five great-nieces and nephews received at least $500,000 of the estate, with the remainder going to Stagliano.  Stagliano also agreed to give up his role as executor of the estate.

In her multiple executions of Wills, Waingrow chanced revoking a valid Will because her failing mental health made her capacity to execute a valid Will questionable.  Had her 2001 Will been declared invalid  at trial due to undue influence, then she would have been deemed to have died intestate.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.

Since Waingrow had no grandchildren, and since her siblings had predeceased her, her surviving grand-nieces and -nephews risked having the entire estate escheat to the State if they pressed having Waingrow’s Will declared invalid because of undue influence on the part of Stagliano.  The prior Will executed in 2000 could not be revived under New York law.   Thus the only way that the grand-nieces and -nephews could be certain to receive any money from the estate was to settle with Stagliano.

The case of  Mabel Waingrow points out once again the necessity of working with an attorney who will  draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, as Mabel’s son did, and this reality must somehow be accounted for in your Will.  Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.  

It is also a good practice to make a yearly appointment with your attorney to review your Will.  Things in your life will surely change from year to year, and it is a good practice to get in the habit of talking through those changes with your attorney. Your attorney will be able to advise you as to any impact on your estate plan.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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What Constitutes a Valid Will in New York? Part 1: Who Can Make a Will?

Some people may be under the impression that, by writing their final wishes on paper, they have created a valid Will.  And while that may be true in part, the writing of a valid Will is an issue of public concern because the State has an interest in making sure that property is passed on to subsequent generation in an orderly manner.  In New York, the validity of a Will is governed by statute, in this case EPTL § 3-2.1.  In the first part of this series, we are going to consider the issue of testamentary capacity, or who can make a Will in New York.

To create a valid Will, a person must be 18 years of age and be of sound mind, what is called testamentary capacity.  The standard for testamentary capacity, or soundness of mind,  is lower than for the capacity to contract.  Note that this important because in the event that a person is creating a Will and a prenuptial agreement (a contract) at the same time, then the standard for soundness of mind is not the same for each document.  The documents should be drafted with these different standards in mind to withstand any future challenges.

There are four ways to prove that the individual creating the will (testator) had testamentary capacity.  First, the person must understand what he or she is doing, that the person is signing a Will.  This goes to intent, that it is the testator’s intention to create a Will.  In addition, the person must understand that a Will transfers property at the time of death and not while the person is still alive.  Finally, the person must understand that making a Will is a solemn legal act that will be executed with statutory Wills formalities.

Secondly, the testator must know the nature and extent of his or her property.  If a testator stipulates in a Will the donation of property that the person has never owned or does not currently own, this may later be used as an indication that the person did not have testamentary capacity at the time of making the Will.  A person of sound mind is presumed to know the extent of what he or she owns.

Thirdly, the testator is expected to know “the natural object of his bounty,” meaning the people in the testator’s life to whom the property will be transferred.  For example, leaving property to fictional characters or notable persons who have already passed away may be an indication of a lack of testamentary capacity.

Of special note here are pets.  Though the owner may consider a pet to be a “best friend” and may grant to the pet some human qualities, the law considers a pet to be property.  Therefore, it is better to find and appoint a caregiver for your pet in your Will, and to create a trust to take care of the pet’s expenses, such as veterinary care, pet insurance, grooming, food, and equipment.  You can stipulate in the trust document how you wish your pet to be cared for.  The trustee can then make sure that your caregiver abides by your instructions.  If not, then a new caregiver can be appointed.

Finally, the testator must have a plan to distribute the property to actual persons.  Here, the plan must be coherent.  It does not matter if the plan is eccentric so long as it is logical and consistent.  The test for rationality is that the plan holds together logically.

What about the mental state of the testator?  Suppose the person cannot take care of his or her own affairs and cannot legally make a contract.  Let’s even assume that the person has a court-appointed guardian to manage his or her property. Can that person still make a Will?

The answer is yes.  The legal definition of “sound mind” with regard to making a Will has nothing to do with intelligence.  So long as the five-factor test above has been met, then the test for soundness of mind has been met.  Even if a person has been adjudicated to lack mental capacity, such as a mental illness, a jury could still find that the person drafted the Will during a lucid interval.  The issue of a lucid interval is a question of fact for a jury to decide in the event of a Wills contest.

Courts have upheld Wills drafted by persons who abused drugs and alcohol, suffered from old age or illness, or were under a physician’s care.  Even a person who suffers from an insane delusion, such as a belief that he or she is the ruler of Atlantis, may make a Will.  The parts of the Will affected by the delusion will be invalidated.  So the gift of the palace in Atlantis will be invalid, but other gifts may survive.  Because psychiatrists are often called to provide expert testimony in such Wills contest cases, the profession has developed a set of guidelines and protocols to assess testamentary capacity.

Attorneys may choose to videotape the Will execution formalities, during which time they will ask the testator about the disposition of property in the document, and ask that the testator affirm that he or she understands that they are signing a Will.  Such precautions may be necessary in anticipation of a Wills contest.  If your attorney wishes to take these precautions, he or she is acting in your best interest so that your property is distributed according to your wishes.

In the next installment of this series, we will look at the issue of the testator’s signature.  As we look at these discreet point, my goal is to provide you with a complete understanding of what it takes to create a valid Will.  This information, in conjunction with the prior information found on past posts, should assist you as you prepare for your conference with your attorney.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

For a downloadable mp3 version of this blog post, please visit my website at http://sites.google.com/site/richardsesq/.  Under Resources, you will find the link to download this episode to your iPod or mp3 player.

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