Estate of Obermeier, Matter of

• Decision Date: 04 May 1989
• Citation: 150 A.D.2d 863,540 N.Y.S.2d 613
• Parties: In the Matter of the ESTATE OF Kathi M. OBERMEIER, Deceased. George H. Holbrook, as Executor of the Estate of Kathi M. Obermeier, Deceased, Respondent; Matthew Beck et al., Respondents, and Frances Murphy, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 613

540 N.Y.S.2d 613

150 A.D.2d 863

In the Matter of the ESTATE OF Kathi M. OBERMEIER, Deceased George H. Holbrook, as Executor of the Estate of Kathi M Obermeier, Deceased, Respondent Matthew Beck et al., Respondents and Frances Murphy, Appellant.

Supreme Court, Appellate Division, Third Department.

May 4, 1989.

Matthew H. Mataraso, Albany, for appellant.

Frost & Donohue (Brien E. Donohue, of counsel), Troy, for George H. Holbrook, respondent.

Gerald A. Harley, Hoosick Falls, for Matthew Beck, respondent.

Before MAHONEY, P.J., and WEISS, KANE, LEVINE and HARVEY, JJ.

KANE, Justice.

Appeal from an order of the Surrogate's Court of Rensselaer County (Ceresia, Jr., S.), entered April 27, 1988, which directed petitioner to sell certain real property owned by decedent to respondents Matthew Beck and Diane Beck.

On November 25, 1986, decedent, along with her husband, executed a contract for the sale of their farm located in the Town of Hoosick, Rensselaer County, to respondents Matthew Beck and Diane Beck. Shortly thereafter, but prior to closing, both decedent and her husband died. Decedent's husband predeceased her and she was left, as surviving tenant by the entirety, as the sole owner of the farm. This proceeding was then commenced by petitioner, as executor of decedent's estate, requesting an order directing the sale of the farm under the terms of the November 25, 1986 contract. Respondent Frances Murphy, decedent's niece and one of the beneficiaries under decedent's will, objected on the ground that decedent was incompetent at the time of the contract's execution. A hearing was held and testimony taken after which Surrogate's Court ruled in petitioner's favor and ordered the sale of the property pursuant to the terms of the contract. This appeal by Murphy ensued.

Initially, we note that a person is presumed to be competent at the time of the performance of the challenged action and the burden of proving incompetence rests with the party asserting incapacity (Matter of Gebauer, 79 Misc.2d 715, 719 361 N.Y.S.2d 539, affd. 51 A.D.2d 643, 378 N.Y.S.2d 653; 66 NYJur2d, Infants and Other Persons Under Legal Disability, § 109, at 316). Furthermore, the party challenging the action is required to establish incompetency at the time the action took place (see, Rattray v. Huntting, 11 A.D.2d 785, 205 N.Y.S.2d 232, appeal dismissed sub nom. Rattray v. Raynor, 10 N.Y.2d 494, 225 N.Y.S.2d 39, 180 N.E.2d 429). In this case, Surrogate's Court concluded that the evidence presented as to decedent's alleged incompetency was insufficient to overcome the presumption of competency. We agree.

At the time the contract was executed, both decedent and her husband were in a nursing home. Decedent had been there for approximately two months. The Becks had been neighbors of decedent and she and her husband were Matthew Beck's godparents. Matthew and his father, Rudolph Beck, testified at the hearing that they visited decedent and her husband at the nursing home frequently and that on one of the visits, it was agreed that the farm would be sold to Matthew. Both Matthew and his father testified that on the day of signing the contract, they were present, as was Charles McNally, another friend of decedent and her husband. They also testified that at the time of signing, decedent was in possession of her faculties and was not confused. In contrast to this testimony, Brenda Morris, a nurse at the nursing home, testified that only McNally was present when the contract was executed. It should be noted, however, that Morris only observed the signing at a distance from her position at the nurse's station and she also stated that she did not hear any of the conversation at the time the contract was signed. She also testified that decedent at times did not know where she was or what time it was and that decedent was confused most of the time. Morris stated that decedent was suffering from dementia and was receiving medication designed to calm and sedate her. However, the nursing summary notes for the week of November 25, 1986 indicate that decedent was confused "at times" and that she could be oriented "as needed". Morris also said that there were periods when decedent was not confused.

In our view, the evidence presented as to decedent's state of mind was concerned with her capacities in general and nothing in the record shows that at the time of signing she was incompetent (see, Rattray v. Huntting, supra ). Nor was there any evidence as to the extent or duration of any mental deterioration at the time of signing (see, id.). A physician who had treated decedent just prior to her admittance to the nursing home stated only that the medication could cause confusion and that at the time of his treatment, which had been approximately two months prior to the signing of the contract, decedent had been fully competent. Given these circumstances, the determination of Surrogate's Court that the presumption of competency had not been overcome was not against the weight of the credible evidence (see, Trode v. Omnetics, Inc., 106 A.D.2d 808, 484 N.Y.S.2d 197) and should therefore be affirmed.

Order affirmed, without...