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Winning a Contested Probate Proceeding

By: Gary E. Bashian, Esq.

When one thinks of Surrogate’s Court litigation,contested probate proceedings immediately come to
mind. While each of the objections to probate present unique challenges for any advocate, an objection based on a decedent’s lack of testamentary capacity can be particularly difficult.

However, it should come as no surprise that medical records are often the evidentiary key to establishing

a decedent’s lack of testamentary capacity, and their use during depositions, motion practice, and ultimately at trial, are one of the most effective ways to successfully prevent an invalid will from being admitted to probate due to a testator’s lack of capacity.

In any contested probate proceedings, the burden is on the proponent to
prove, by a preponderance of the evidence, that at the time of the will’s execution the testator possessed
the requisite testamentary capacity. Conversely, it is the objectant’s task to show the Court the proponent failed to establish that the testator in fact had the mental capacity needed in order to create a valid will.
It is well established that when considering the issue of testamentary capacity— absent a question of the testator not having reached the age of majority—that the Court must determine:
1. Whether the testator understood the nature and consequences of executing the will; and
2. Whether the testator knew the nature and extent of the property he/she was disposing of in the
proffered will; and
3. Whether the testator knew those who would be considered the natural objects of his/her bounty, and
the testator’s relations with them.
The contest proceeding will also be fundamentally shaped by two other rules of law:
1. That less mental facility is required to execute a will than any other legal instrument; and
2. That only a brief window of lucidity is needed in order to establish testamentary capacity.
By the strict letter of the law, only evidence relating to the condition of the testator immediately before or after the will execution is operative, meaning that the investigation into a testator’s capacity must be focused “upon the strength or weakness of mind at the exact hour of the day of execution.”
Evidence simply supporting the position that “the testator lacked capacity or was incompetent before or after the will was executed does not necessarily invalidate the will.”

Given these controlling principles, it is clear that hard evidence in the form of medical records and medical testimony are often instrumental, if not necessary, in establishing that a testator lacked the requisite mental capacity to execute a valid will. Accordingly, objectant’s counsel must obtain any and all medical records that are available regarding the testator at or about the time of the will execution—and those prior if the testator suffered from a progressive or degenerative illness—as soon as possible.

Medical records in the proponent’s possession, and HIPAA authorizations to release same from the testator’s medical providers, should be demanded as soon as the discovery process begins—during pre-1404 discovery, which the Court should allow (especially when demanded)— or immediately upon the issuance of a discovery schedule when the objections themselves are filed. Furthermore, it is incumbent upon objectant’s counsel to interview, and in many cases depose and/or obtain an Affirmation from, the testator’s treating physician(s) regarding the decedent’s mental condition at or about the time of the will execution.

Ideally, an objectant will have medical records that document a testator’s cognitive impairment as close to the time of the will execution as possible. Medical records that detail a testator’s capacity within an hour before or after the will execution are perfect as they speak to the all-important time frame that the Court is most acutely interested in. However, this is not to suggest that medical records documenting a cognitive impairment outside of a mere one hour window are not persuasive or without utility given that very few testators execute a will while a contemporaneous medical record is being generated. Where there is evidence of a progressive illness and a steady mental and/or physical decline, a strong case can be made based on medical records documenting such a condition that—given the degenerative
nature of their condition and the fact that cognitive diseases generally do not improve over time—the testator lacked capacity at the time of the will’s execution. Nevertheless, the controlling principal is that medical records documenting any cognitive impairment closer in time to the will execution will offer much greater support than those that are more remote.
Temporal disparities between the medical diagnosis and the time of the will signing will not only shape the approach during depositions, but come into sharp focus upon summary judgment and later at trial. During depositions, the timeline of a testator’s mental health that is reflected in the medical records can
be used to structure the lines of questioning; box in a deponent, and force admissions that the proponent would otherwise never make. On summary judgment, medical records can both create triable issues of material fact by drawing into question the credibility of a proponent’s evidence—which often takes the form of attorney draftsmen testimony and affidavits of attesting witnesses—or conclusively establish
that the testator could not create a valid will as a matter of law. At trial, medical records always serve as compelling— though not determinative—evidence that can make or break a case before a judge or jury.
From an evidentiary standpoint, medical records—at any time they are introduced other than during a deposition— must be offered in proper and admissible form,9 meaning that they must be certified by the custodian of record and/or affirmed by the treating physician. Without this certification, the medical records alone are “…not sufficient to properly place the medical conclusions and opinions contained
in those records and reports before the court, since those opinions must be sworn to or affirmed under the penalties for perjury.”
Although in limited circumstances the Court “may consider inadmissible evidence in opposition to summary judgment, if the opponent provides an acceptable excuse for the inadmissible
form,” acceptable excuses for failure to present admissible evidence are few and far between, and always viewed with a high degree of skepticism by the Court. Furthermore, there is an absolute bar at
trial—absent consent or a judicial ruling to the contrary—to the introduction of inadmissible hearsay evidence that does not fall under an exception.

The Court’s approach in this regard is not without good reason. As indicated in the McKinney’s Practice Commentaries to CPLR §4518(c), and independent of authenticity issues, the certification does not merely authenticate the record, but “…demonstrate(s) that the requirements of subdivision (a) of §CPLR 4518 have been met, i.e., that the record was made in the regular course of business, that it was the regular course of the business to make a record of this type and that the record was made at or about the time of occurrence of the event recorded. In other words, the elements of the business records hearsay exception must still be demonstrated…”
As such, when procuring a testator’s medical records, litigators must be sure to request certified copies so as to avoid any evidentiary infirmity upon summary judgment, or later at trial.
Notably, many medical providers will only produce certified records subject to a subpoena, notwithstanding a request for certified records made pursuant to a HIPAA authorization. Where this is the case, it is always better to err on the side of caution and subpoena the necessary records—despite the additional cost and disclosure requirements—so as to ensure there are no evidentiary roadblocks as
the proceeding unfolds.

This article is intended to be only a brief outline of the ways in which medical records can be used to successfully litigate a contested probate on the grounds of lack of testamentary capacity.

The points highlighted herein identify the burden and standard of proof; the elements of the objection; applicable evidentiary requirements; and the strategic use of medical evidence in support of an objectant’s claim to lack of capacity as the basis to deny a will probate—an understanding of which is crucial to successful advocacy.

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