MHL ARTICLE 81 - New York State Unified Court System

Haddad v. Portuesi, 18 Misc. 3d 1126A; 2008 NY Misc. LEXIS 301 (Sup. Ct., Kings Cty. 2008)
(Solomon, J.)
This case was an action by a buyer for damages and specific performance of a contract of sale of real
estate entered into between the buyer and a seller who suffered from chronic schizophrenia. Despite
the appointment of an Article 81 guardian for the seller subsequent to his entering into the contract
of sale, the court held that the seller was presumed competent and that he failed to prove sufficiently
that he lacked capacity at the time he entered into the contract.
Matter of Kaminester, 17 Misc.3d 1117(A) (Sup. Ct. NY Cty 2007), aff’d and modified,
Kamimester v . Foldes, 51 A.D.3d 528; 2008 NY App Div LEXIS 4315 (1st Dept.), lv dismissed
and denied 11 N.Y.3d 781 (2008) ; subsequent related case, Estate of Kaminster, 10/23/09,
N.Y.L.J. 36 (col.1)(Surr. Ct., NY Cty)(Surr. Glen)
After the death of the IP it was discovered by the Executrix of his estate that his live in girlfriend
had secretly married him in Texas and transferred his property to her name in violation of a
temporary restraining order that had been put into effect during the pendency of the Art 81
proceeding. These acts in violation of the temporary restraining order took place before the trial
court had determined, following a hearing, whether the AIP required the appointment of a guardian.
Upon the petition of the Executrix to the Court that had presided over the guardianship proceeding,
the court “voided and revoked” the marriage and transactions and held the AIP’s purported wife in
civil and criminal contempt of court and ordered her to pay substantial fines. On appeal by the
purported wife, the Appellate Division held that under the circumstances and upon the proof, the
marriage had been properly annulled. In the subsequent case, arising in Surrogate’s Court during
the probate of the IP’s Last Will, the Executrix sought a determination of the validity of the spousal
right of election exercised by the purported spouse, arguing that her marriage to decedent had taken
place 2 1/2 months after a Texas court had appointed a Temporary guardian, during the pendency
of the NY Article 81 proceeding and 2 ½ months before the IP died. Moreover, in the earlier
reported decision of Supreme Court, the court had found that there was a need for a guardian based
on the IP’s cognitive deficits and had posthumously declared the marriage revoked and voided due
to his incapacity to marry. The purported wife argued that her property rights and marriage could
not be defeated by the posthumous annulment because under DRL Sec. 7(2) a marriage involving
a person incapable of consenting to it is “voidable”, becoming null and void only as of the date of
the annulment in contrast to MHL 81.29(d) permitting the Article 81 court to revoke a marriage
“void ab initio,” a distinction critical to the purported wife’s property right. The Surrogate ultimately
held, based upon both statutory and equitable theories, that the marriage had been “void ab initio,”
thus extinguishing the purported wife’s property rights, including her spousal right of election.
Matter of Mildred M. J., 43 A.D.3d 1391; 2007 N.Y. App. Div. LEXIS 10169 (4th Dept 2007)
The trial court properly determined that: (1) the petitioner failed to meet her burden of showing that
the AIP had lacked capacity when she signed a Power of Attorney and Health Care Proxy because
the record contained: both testimony from a physician and nurse practitioner that the AIP would have
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