MHL ARTICLE 81 - New York State Unified Court System

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 Lillian A., 20 Misc.3d 215; 860 N.Y.S. 2d 382 (Sup. Ct., Delaware Cty., 2008)
(Peckham, J.)
An Article 81 guardian was appointed by a New York court after a bedside hearing, while the AIP
was a patient in a hospital in New York. The Order provided, among other things, that the guardian
had the power to change the IP’s place of abode and also that the guardianship was for a limited
durations and subject to being extended upon further motion at a later date. The guardian then
changed the place of the IP’s abode to an out-of- state nursing home. When the Order was expiring
, the guardian moved in the New York court to extend his powers. The New York Court held that
(1) it did have jurisdiction over the IP even though she was now out-of-state because, although the
guardian had the power to transfer her abode, he did not have the power to and did not change her
domicile and (2) if a judicial proceeding is begun with jurisdiction over the person it is within the
power of the State to bind that party by subsequent orders in the same cause. Having established that
jurisdiction existed, the court then held that because the IP was then “not present in the state” under
MHL 81.11 (c)(1) the IP’s presence at the hearing could be waived.
English v. Sellars et al, 2008 U.S Dist. LEXIS 4514 (WDNY 2008)
IP brought action pro se in Federal court to have his guardians removed. The court held that
although he appeared to be arguing some deprivation of his rights as a citizen, he had not specifically
alleged any procedural or substantive Federal constitutional concern with how Art. 81 was applied
in his case and asserted only broadly that he had been deprived of life, liberty and property without
due process of law. The Federal court therefore dismissed the claim for lack of jurisdiction.
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