PROBATE LITIGATION – NEW YORK APPELLATE DIVISION GRANTS SUMMARY JUDGMENT DISMISSING OBJECTION BASED ON LACK OF TESTAMENTARY CAPACITY BUT NOT WITHOUT SHARP DISSENT

In the September 2018 decision of Matter of Giaquinto, 2018 N.Y. Slip Op. 06065 (3d Dept. 2018), the New York Appellate Division, Third Department, affirmed the granting of summary judgment in a probate contest that dismissed an objection that the decedent lacked testamentary capacity. In granting summary judgment on this objection, the Appellate Division recognized the declining cognitive abilities of the decedent but determined that the key inquiry is whether the decedent was lucid and rational at the time the Will was signed.

In a stinging dissent, two justices took issue with the majority’s refusal to consider evidence that the decedent suffered cognitive deficiencies and exhibited inappropriate behavior within a few weeks of execution of the Will. In stating that summary judgment should rarely be granted in contested probate proceeding, the dissent noted that the existence of evidence demonstrating decedent’s questionable behavior so close to the date of execution of the Will should preclude the granting of summary judgment.