MHL ARTICLE 81 - New York State Unified Court System

probate upon a finding that the individual possessed testamentary capacity.
Estate of Mary Cugini, 7/29/2009, NYLJ, 36 (col.3) Surr. Ct., Richmond Cty. (Surr. Gigante)
The court denied a motion by the proponent of a will to quash certain HIPAA releases executed by
the Public Administrator for the decedent’s medical/psychiatric records. The motion asserted that
there was no need for the inquiry and therefore for the medical information because decedent had
already been found to be in need of a guardian. The court denied the motion, reasoning that “[p]roof
of the elements required to establish incapacity for the purpose of appointment of a guardian under
the Mental Hygiene Law differs from those required to demonstrate testamentary incapacity thus the
findings of capacity in the Art 81 proceeding do not collaterally estop objectants [to the probate of
the will] from litigating the issue of decedent’s testamentary capacity .”
Matter of Elkan, 22 Misc.3d 1125A; 880 N.Y.S.2d 872 (Surr. Ct. Bronx Cty. 2009) (Surr.
Holtzman)
In a will contest, the court found that the testator lacked testamentary capacity to draw the will. The
Surrogate looked, inter alia to the testimony of the examining psychiatrist and the Court Evaluator
in the Article 81 proceeding held prior to the decedent's death to establish lack of testamentary
capacity.
Article: The Article 81 Guardian and the Personal Representative, by Colleen Carew and
John Reddy, Jr., NYLJ 8/20/08
Good article addressing a 2008 amendment to MHL 81.34 and new section MHL 81.44 concerning
the division of responsibilities with respect to an IP's estate between an Art 81 guardian and the
personal representative of a deceased IP . Also discussed is the newly enacted prohibition in MHL
81.29 against pre-death probating of a will during the pendency of an Art 81 proceeding.
Estate of Anne C. Gallagher, 2007 NY Misc LEXIS 7639; 238 NYLJ 83 (Sur. Ct. Kings
Cty.)(Surr. Torres)
A finding that an individual needs a guardian is not inconsistent with a claim that the same
individual possesses testamentary capacity. Accordingly, the Surrogate denied a motion to dismiss
a probate petition made by objectants on the grounds of judicial estoppel.
Matter of Khazaneh, 15 Misc. 3d 515; 834 N.Y.S. 2d 616(Surr. Ct., NY Cty. 2006) (Surr. Glen)
In this probate proceeding, the Surrogate was called upon to examine whether a testator lacked
testamentary capacity because he did not know the exact value of his holdings. The Surrogate
looked to Article 81 and focused on its emphasis on “task specific functional ability”, and found that
the testator, who clearly had the cognitive ability, possessed sufficient capacity to make his Will. In
so finding, the Surrogate made the following insightful comment: “Throughout most of our legal
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