Time and again situations arise where the circumstances and proceedings concerning an Article 81 Guardianship and estate litigation in the Surrogate’s Court intersect. The New York Probate Lawyer Blog has published many articles concerning the topics of Guardianship and litigation in estates. At the core of any Article 81 Guardianship proceeding is the need to determine by clear and convincing evidence whether a person is incapacitated.
Incapacity is a determination that someone, due to some disability or condition, is incapable of handling their personal needs or property management and cannot appreciate that their diminished capacity is interfering with their functionality. Unless a Guardian is appointed, such person would suffer harm. These issues involve decisions or actions an alleged incapacitated person may have made and, sometimes, whether the person was subjected to undue influence or manipulation which took advantage of a lack of capacity. Article 81 cases often involve assertions by interested parties such as family or friends allege wrongdoers have converted an AIP’s assets for their own benefit or abused advance directives such as a Power of Attorney.
Once a person dies, it is very common that accusations of improper conduct, which were raised in a Guardianship case, transfer over or re-emerge in estate litigation. Various matters relating to undue influence or testamentary capacity may be asserted in a Will Contest. Also, these concerns may be relevant with regard to pre-death transfers of assets by a decedent when it was asserted in a Guardianship case that there was manipulation or fraud. Information disclosed or determinations made by a Court in a Guardianship case may be referenced to support assertions in an estate litigation proceeding. It may be that in the estate case, conduct by certain individuals which was exposed in the Guardianship proceeding may be referred to challenge a person’s viability to be appointed as an Executor, Administrator or Trustee. In a Guardianship case the Court typically appoints a Court Evaluator who does an extensive review of the factual basis for the appointment of a Guardian and who provides certain recommendations to the Court. The Report of a Court Evaluator may contain important information which is relevant in the estate proceedings…