Fourth Department – Testamentary capacity: Matter of Ji Ting Wang Burrows

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Testamentary capacity

Summary judgment – Burden of proof

Matter of Ji Ting Wang Burrows

CA 20-01042

Appealed from Surrogate’s Court, Herkimer County

Background: The respondent, as the guardian of two children, appealed from an order that granted the petitioners’ motion for summary judgment dismissing both of the respondent’s objections to the probate of decedent’s will and a petition to set aside the accompanying revocable trust based on lack of capacity and undue influence.

Ruling: The Appellate Division affirmed. The court held that testimony from the witnesses to the will’s execution, as well as of the decedent’s longtime executive assistant demonstrated that, despite his mental impairment at the time of the will’s execution, the decedent was not operating under any mental impairment at that time. He was entirely aware of his actions and his intentions with respect to the will. The court also noted that the execution of the will was the culmination of prolonged discussions between the decedent and his attorneys. The decedent had also stated, repeatedly, that he deliberately did not provide for the children in the will because he had already provided for them in a separate trust. The Appellate Division further held that the respondent did not raise a question of fact noting that bad health is not necessarily inconsistent with testamentary capacity.

Gerard G. Brew, of McCarter & English, for the respondent-appellant; Robert H. Rosh, of McCarthy Fingar, for the petitioners-respondents.