MHL ARTICLE 81 - New York State Unified Court System

Palmara v. Palmara, 2011 NY Slip Op 33088U; 2011 N.Y. Misc. LEXIS 5648 (Sup. Ct., Kings
Cty., 2011)
In an action to invalidate a deed pursuant to RPAPL 1521 (1) relating to property conveyed by the
father to the defendant-son, to the exclusion of the plaintiff-daughter, in the father’s last will and
testament and a subsequent deed, the Supreme Court, inter alia, granted the son’s motion to dismiss
the action, noting that the daughter had failed to establish that the father was incompetent to execute
the documents, or that they were the product of undue influence.
Matter of Mario Biaggi, Jr., 91790/09, NYLJ 1202533294290 at *1 ( Sup. Bronx, Decided Nov.
10, 2011 (Hunter, J.)
The court held that a guardian was not required to return to court to ask the court to rule on the IP’s
testamentary capacity before taking the IP to a lawyer to draft a Will, stating : “... allegations of
testamentary capacity and undue influence are matters that should be more appropriately be brought
up, if necessary, post- mortem and not at this time before this court [sitting in the Article 81
guardianship proceeding]...”
Matter of Garrasi, 33 Misc3d 1224A; 943 N.Y.S. 2d 791; 2011 N.Y. Misc. LEXIS 5530 (Surr.
Ct., Schenectady Cty. 2011) (Surr. Versaci)
In an estate proceeding, an objectant sought to have the Surrogate set aside a transaction made by
the decedent’s attorney -in -fact during his lifetime on the theory that Power of Attorney had been
voided during the course of an Article 81 proceeding and thus all of the transactions made by that
attorney-in - fact should fall. The Surrogate found that a court can only revoke a power of attorney
upon a judicial determination that it was executed while the principal lacked capacity and, once
revoked, all prior transactions made with the use of that power of attorney are voidable. In this case,
the Power of Attorney was revoked in the course of an Art 81 proceeding based on an oral stipulation
of the parties to that proceeding that revoked all powers of attorney and health care proxies for
decedent. Revocation was not based upon an adjudication of decendent’s capacity on the day that
he executed the power of attorney. Moreover, nowhere in the stipulation did the parties agree, nor
did the Supreme Court order, that any of the prior transactions made through the use of the Power
of Attorney be voided, thereby suggesting that the parties intended that the revocation of the Power
of Attorney be prospective only. The Surrogate reasoned that to find otherwise would have a chilling
effect on the potentiality of settling an MHL Article 81 proceeding whereby a power of attorney is
routinely revoked by stipulation of the parties upon the appointment of a guardian to avoid
competing and/or conflicting agencies. Such parties would be unwilling to agree to a revocation of
the power of attorney if by doing so, the agreement could be misinterpreted and the revocation
misapplied retroactively, rendering all prior acts done under its authority voidable when such effect
was not the intent of the parties and there has been no finding of prior incapacity. Therefore, the
Surrogate held that the revocation of the power of attorney based upon the agreement of the
interested parties did not, in and of itself, render voidable, the transactions made under its authority
prior to its revocation.
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