A PRESUMPTION OF COMPETENCE WHEN DAD REMARRIES

This is a familiar fact pattern. A parent transfers family home to joint ownership with new wife. At death of parent, the children claim undue influence. Perhaps, the answer is for the parent to just transfer a life estate to the new wife, unless the intention is not to leave the property to the children.

Mastrantoni v Mancini, 2019 NY Slip Op 02698, Decided on April 10, 2019, Appellate Division, Second Department:

"The plaintiff commenced this action against the defendant, her father's widow, inter alia, for a judgment declaring that a deed dated July 21, 2009, is null and void. Pursuant to that deed, the plaintiff's father, Armando Mancini (hereinafter the decedent), transferred ownership of residential property, where he resided with the defendant for many years, from himself alone to himself and the defendant. The decedent died on October 19, 2014. According to the plaintiff, when the decedent executed the deed, he was incompetent to do so and the conveyance was the product of undue influence.

The defendant moved for summary judgment declaring that the subject deed is valid and in full force and effect. The Supreme Court granted the motion and issued a judgment in favor of the defendant and against the plaintiff declaring, inter alia, that the deed is valid and in full force and effect. The plaintiff appeals.

We agree with the Supreme Court's determination to grant the defendant's motion and to declare, inter alia, that the deed was valid and in full force and effect.

"As a general rule, a party's competence is presumed, and in order to set aside a transfer of property on the ground of lack of capacity, it must be established that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability" (Buckley v Ritchie Knop, Inc., 40 AD3d 794, 795; see Preshaz v Przyziazniuk, 51 AD3d [*2]752, 753). Here, the defendant established, prima facie, her entitlement to judgment as a matter of law based upon the presumption of the decedent's competence and by submitting, among other things, the deposition testimony of the attorney who prepared the deed and witnessed its execution with a certificate of acknowledgment, establishing that the deed was properly executed (see CPLR 4538; Valenzano v Valenzano, 98 AD3d 661, 661-662; Preshaz v Przyziazniuk, 51 AD3d at 753). In opposition, the plaintiff failed to raise a triable issue of fact as to the decedent's mental capacity on the day he executed the deed (see Crawn v Sayah, 31 AD3d 367, 368).

Similarly, the defendant established, prima facie, that the decedent's conveyance of the subject property by the deed was not the product of undue influence (see Crawford v Smith, 130 AD3d 968, 969; Harris v Pitts, 109 AD3d 790, 791). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bazigos v Krukar, 140 AD3d 811, 814)."