New York Real Estate Lawyers Blog

Music lovers, reeling from the recent news of Aretha Franklin’s death, have now found out that the “Queen of Soul” died intestate, without a will.  This blog has previously addressed the matter of another musician, Prince, having passed away without a will and the legal repercussions.  We  will address the legal issues that have arisen once the “Queen of Soul” passed away without a will.

In Michigan, where Ms. Franklin had her primary residence, the assets of an unmarried person are left in equal shares to her children.  New York would have a similar disposition.  Devil’s advocates might say that if the legal result of having no will is the same as having a will, that the children will inherit the assets, what is the benefit of having a will?  First, if one has a will, the fiduciary of the estate (Executor) can be selected by the decedent, rather than the default person being selected according to statute.  For instance, musicians such as Prince and Aretha Franklin leave vast music catalogs deserving of post-death management by an expert who has knowledge of how to handle such specialized assets.  Second, a person making a will may have a preference for how the assets will be distributed, instead of the statutory default of all children sharing equally.  If Ms. Franklin had devoted greater consideration to this issue, she may have found it appropriate for the “red roses” in the garden in “Spanish Harlem” to be transferred to the child who would most appreciate and care for this asset.  Further, family infighting over her “pink Cadillac” could have been avoided, so that the ride “on the freeway of love” could take place without delay.

Apparently, Ms. Franklin valued privacy and nondisclosure of her assets during her lifetime.  The best way for her to have avoided the additional public disclosure that takes places when one dies without a will would be to have made a revocable trust.  That way, assets titled in the name of the trust would be transferred automatically after death as directed in the trust, with no public disclosure and without Court intervention and the delays that it may entail.

News outlets have recently reported on the Will contest brought by the children of the late country singer Glen Campbell.  This post will address the concepts of diminished capacity and undue influence and whether these concepts can potentially invalidate a Will in New York.

In general, a person can make a Will and disinherit his entire family or those deemed of close relation.  The exception to this rule is that one cannot disinherit a spouse, as spouses qualify for at least a minimal portion of the estate under the concept of elective share.  Potentially a person may be estranged from his family and decide to leave his estate to a friend or someone else who is close to him.  New York Surrogates Courts generally favor the making of a Will and will not invalidate a Will merely because a particular person was disinherited.

However, a Will can be contested on the basis of the diminished capacity of the person making the Will.  Diminished capacity is when the person making the Will is afflicted with a physical or mental ailment which may cloud his judgment or render him unable to know his own wishes.  Let’s say that the testator (the person who made the Will) was suffering from Alzheimer’s disease, like Glen Campbell.  Such an affliction does not automatically invalidate the Will.  New York Courts have held that if the testator had a “moment of lucidity” when the Will was signed, then it will be valid.  So long as the testator understood the general assets of his estate and the “natural objects of his bounty” (the identity of his family members or friends), the Will should be upheld.  Prudent legal practitioners  typically meet alone with the testator before the Will is drafted and before it is signed to ask questions and attempt to evaluate the mental capacity of the testator.  The recollections of the meetings should be memorialized in a memorandum to the client’s file in the event of a Will contest.