MHL ARTICLE 81 - New York State Unified Court System

th
Matter of Estate of Rose McCloskey, 307 A.D.2d 737; 763 N.Y.S.2d 187 (4 Dept 2003)
An AIP executed a will while there was an Article 81 proceeding pending. At the time her attorney
determined that despite the fact that an Art 81 petition had been filed, the AIP/testator possessed
testamentary capacity and allowed her to execute a will. The Court held that although the AIP
testator may have been forgetful and cantankerous, the objectants failed to meet the burden of
proving that she: (1) understood the nature and consequences of executing a will; (2) knew the nature
and extent of the property she was disposing of; and (3) knew those who would be considered the
natural objects of her bounty and her relations with them. Also the court stated in other words that
the AIP/testator “did not suffer from an insane delusion which directly affected her decision not to
leave anything to the [parties objecting to the probate of the will]”
st
Matter of Will of Colby, 240 A.D.2d 338; 660 N.Y.S.2d 3; (1 Dept., 1997)
Finding of incapacity under Article 81 is based upon different factors from those involved in finding
of testamentary capacity.
F. Matrimonial law
th
Matter of Donald L.L., 82 A.D.3d 72; 916 N.Y.S. 2d 451; 2011 NY Slip Op 943 (4 Dept., 2011)
Guardian brought an action against the AIP’s husband, seeking to enforce a stipulation of settlement
entered in an Article 81 proceeding which divided the couple’s property in a manner similar to
equitable distribution but expressly declined to dissolve the marriage. The husband cross-moved to
vacate the stipulation of settlement, arguing that the guardianship court should not have granted
equitable distribution without having conducted a hearing on the couple’s economic issues. The
Appellate Division disagreed, holding that the economic issues were resolved by the stipulation,
which was the product of extensive negotiations conducted after full disclosure. The court continued
that the trial court had properly refused to apply the equitable distribution law (Domestic Relations
Law § 236 [B]) in view of the couple’s declination to dissolve their marriage.
Matter of Cheryl H., 7/21/10, NYLJ 26 (col.3)(Sup. Ct. Nass. Cty.)(Diamond, J.)
An acrimonious matrimonial action with a custody component involving an autistic son, evolved into
an Article 81 guardianship proceeding when the son became 22 years old. While a custody battle,
the father sought to enforce his visitation rights and his right to be informed about significant
developments with his son. The mother consistently restricted them, arguing that the father did not
properly supervise the son. She refused him access in violation of assorted court orders directing
such access to the son. When the son was 22 years old, the mother petitioned for and was granted
Article 81 personal needs guardianship over her son. The order appointing her directed her to
provide reports to the father and the court, established a detailed visitation schedule, and specifically
found that there was no need for supervised visits for the father. Despite such order, for the next 14
24