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Elder Law Minute TM
Will contests: The antithesis of proper planning
BY: RONALD A. FATOULLAH, ESQ.
AND ADAM D. SOLOMON, ESQ.
Under New York law, there are several recognized
ELDER LAW
grounds to contest a Will, which are as follows: Lack
of Due Execution, Lack of Testamentary Capacity,
Revocation, Fraud, Undue Infl uence/Duress, and
Forgery. It is important to note that Mistake is not
considered valid grounds to contest a Will. In addition,
The signifi cance of humor and aging
Research scientists have recognized the importance
of humor in the recovery from illness. The physiologic
eff ects of humor can stimulate certain hormones that
increase the level of pain tolerance. Psychologically,
humor, according to the researcher Raskin, is “cognitive
and perceptual as well as social and behavioral.”
According to Sullivan and Deane, “Aged patients are
more willing to share their concerns with a deeper signifi
cance that can improve the quality of their relationships
when humor is expressed thoughtfully.” Further,
“Humor as an intervention must, however, be individualized
to suit an elder’s preferential style.” How can this
be accomplished? Careful observation gives us clues for
assessing the elderly’s appreciation of the humor they
are experiencing.
Humorous songs, cartoons and slapstick movies can
generate a desired chuckle and perhaps full-blown
laughter. Healthy humor should not be tasteless or
off ensive, nor give the impression of disregard for an
individual’s concerns. Nahemow, a researcher in aging,
states, “The study of aging must recognize the numerous
elements that give meaning in later life, ie: an
awareness of time, of memories, an integration of those
memories, and above all, a sense of humor.” Maslow
states, “Humans have the ability to step back and see
the total context of an event.” He also defi nes humor as
“a high level of awareness.”
The aged are not a humorless group and are frequently
able to laugh at themselves. Objections to
jokes about old age appear to emanate from the young
far more than the old. Perhaps the old, from their vantage
point and with a lifetime of experiences, can see
more clearly the results of the human condition via the
use of humor. Humor is often mentioned as an attribute
of wisdom and of Maslow’s theory of self-actualization.
The subject of humor can be further illuminated
with the telling of a joke that can describe how humor
is benefi cial to an individual.
In a recent synagogue newsletter, our rabbi published
a humorous joke in story form and as a teachable
moment but with a healthy chuckle. And now to
that joke!
It is a torrential rain with the river levels rising and
threatening the surrounding town, with the water
coming into the ground fl oor of a particular house. A
rowboat with several police on board approaches. The
offi cer in charge shouts out to the owner of the house,
“Sir, let us take you to safety. The water level is getting
dangerous.” The man replies, “No thank you. I trust in a
higher authority to deliver me.” At that point the man
is forced up to the second fl oor of his house. A second
rowboat comes by and the offi cer shouts out once
again, “Sir, let us evacuate you. The level is getting dangerous.”
Once more the man replies, “No thanks, I trust
in the Almighty and I am confi dent he will rescue me.”
The rain does not stop and the man is forced up onto
the roof of his house. A helicopter fl ies over and the
offi cer shouts down, “Sir, grab hold of the rope and
we’ll pull you up! You are in terrible danger.” Again he
replies, “I am confi dent He will deliver me.” The deluge
continues and the man is swept away in the current
and drowns. He goes up to heaven and arrives at the
Pearly Gates and comes before the Divine Presence. The
man asks, “Dear Lord, I don’t understand? I’ve been a
good and righteous person and have depended on you
to save me in my hour of need. Where were you?” The
Lord answers, “I sent two boats and a helicopter, what
more do you want?” It is a humorous and fi tting punch
line for a joke that is in sync with the profound principle
mentioned earlier. We can all learn a great deal about
ourselves if we make the eff ort. In other words, have
faith in a higher authority but it will still be up to you
to take the practical initiative when threatened with a
serious and challenging crisis.
Here yet is another true and compelling story about
how humor literally cured the writer, Norman Cousins,
of a serious and debilitating illness. In his novel entitled
“The Anatomy of an Illness,” Cousins describes his gradual
recovery of moving his jaw. The doctor put it to him
bluntly, “Only one of every 500 people diagnosed with
the affl iction fully recovers.” To beat the odds, he decided
he would need to actually pursue why his body was
reacting the way it was and how to reverse the damage.
Relying on previously read books on the subject
such as Hans Selye’s “The Stress of Life,” he learned that
negative emotions such as repetitive frustration and/or
suppressed rage are inextricably linked to each other. To
combat the unbearable pain, he began watching movies
by the Marx Brothers, the Three Stooges, Candid
Camera and selections from E.B. White’s Sub Treasury
of American Humor. He soon discovered that merely 10
minutes a day of induced hearty laughter would produce
a few hours of painless sleep. After several years
of continuous laughter therapy, Cousins experienced
little to no pain in his day-to-day living, although he
relied on medical treatment to physically repair his failing
immune system. He also relied on that often overlooked
medication “laughter” to mentally cure his condition
and live a happier existence. Positive thinking,
positive actions, positive habits and positive results are
the bedrock of a healthy outcome. Cousins’ philosophy
about humor as a “healing drug” can be summed up
with his own words: “Hearty laughter is a good way to
jog internally without having to go outdoors.”
Final thought: It doesn’t require much to appreciate
the insight and words of the rabbi’s joke, or Norman
Cousins’ application of the positive principles of positive
thinking while he watched comedy and comics on fi lm.
Whether it be a chuckle or a belly laugh as it was delivered
by Uncle Miltie, Jackie Gleason, the Ritz Brothers,
or Abbot and Costello with their zany baseball skit entitled
“Who’s on First,” the rabbi said it best, “What better
way to inspire us than with a joke and with great meaning.”
Where there is humor there will always be a gladdening
of the human spirit.
Sheldon Ornstein Ed.D, RN, LNHA
Dr. Sheldon Ornstein is a
registered professional nurse
with a doctoral degree in nursing
organization. He has specialized
in the care of older
adults and has published
many articles on the subject.
He has done post-graduate
work in gerontology and has taught at several universities.
In 2013, he was inducted into the Nursing
Hall of Fame at Teachers College, Columbia University.
an individual seeking to contest or object to a
Will (an “Objectant”) must have “standing”. In order
to have standing one must be a benefi ciary under
the propounded Will (a “Legatee”), be a descendant
of the decedent (a “Distributee”), or have an
aff ected pecuniary interest; i.e., they would receive
less under this propounded Will or would receive
a greater share of the decedent’s estate if the propounded
Will was deemed invalid and disregarded
by the Court.
As many are aware from recent events, celebrity
broadcasting legend Larry King recently passed
away on January 23, 2021, giving rise to the most
recent celebrity faux pas with respect to estate planning
blunders and giving rise to yet another avoidable
estate dispute, which can bring with it great time
delays and costly litigation between the parties.
Among the recent celebrity estates that became
the center of controversy was that of Robin Williams,
who died on August 11, 2014, leaving his estate worth
$100 million to his children, and only a life estate to
his wife for her to reside in the home during her life,
the home also going to his children upon his wife’s
subsequent death. Prince Rogers Nelson (aka Prince)
died intestate on April 21, 2016. When an individual
dies “intestate” it means he or she died without a Will.
This causes the individual’s estate to be distributed as
proscribed under the laws of descent and distribution
of one’s state of residence, as opposed to what one’s
actual wishes may have been. Prince’s death without
a properly executed Will that detailed his wishes
and property distribution resulted in Prince’s heirs,
siblings, half-siblings and other claimants disputing
and each staking a claim to Prince’s approximate
$300 million estate. Aretha Franklin died on August
16, 2018. Although it was at fi rst believed that Aretha
died intestate, handwritten notes were subsequently
discovered that have been presented as Aretha’s purported
Last Will & Testament, giving rise to an ongoing
dispute of her approximately $60 million estate. More
recently, both Kobe Bryant and Chadwick Boseman
died in an untimely fashion and intestate, leaving
the distribution of their estates up to their respective
states, and forcing their grieving families to pick
up the pieces, make sense of their unplanned estates
and the fi nancial consequences of liquidation and distributions.
In 2010, Larry King’s net worth was $144 million,
but in 2019 it was approximately $2 million. Larry created
a handwritten (“holographic”) amendment to his
will dated October 17, 2019 (the “Codicil”), leaving his
entire estate to his children in equal shares, and cutting
out his estranged wife altogether. This Codicil was
made just two months after Larry fi led for divorce from
his wife, Shawn Southwick King. However, Shawn
King was the named fi duciary under Larry’s prior testamentary
instruments, a benefi ciary and shareholder,
and perhaps a party to a joint family estate plan.
Shawn King has stated that she did not know about
Larry’s Codicil and plans to strenuously contest it, alleging,
among other things, undue infl uence.
It is important to note that in New York, fi ling for
divorce is insuffi cient and one must actually receive
a Judgment of Divorce to be offi cially divorced.
Otherwise, one’s soon-to-be ex-spouse is still one’s
spouse and is entitled a minimum of one-third of the
deceased spouse’s estate as an Elective Share, as a
matter of right under New York Estates, Powers and
Trusts Law Section 5-1.1A. This statute protects a surviving
spouse from being completely disinherited
from the estate of the deceased spouse. In addition,
under New York law, holographic wills are reserved
for members of the military or naval services during
times of war or armed confl ict or when out to sea, are
subject to strict rules, and generally must be properly
executed under the formalities of the laws of New
York within a specifi ed timeframe or otherwise be
rendered invalid.
Whether you have an estate worth $500 or $500
million, it is wise to consult with an experienced Trust
& Estates attorney to assist you in creating and putting
into a place a proper estate plan. The failure to
create an estate plan and provide for your wishes to
be carried out may cause unintended distributions,
tax consequences and costly and long-lasting disputes
between family members.
Ronald A. Fatoullah, Esq. is the founder of Ronald
Fatoullah & Associates, a law fi rm that concentrates
in elder law, estate planning, Medicaid planning,
guardianships, estate administration, trusts, wills,
and real estate. Adam D. Solomon, Esq., is a Trusts
& estates attorney with the fi rm. The law fi rm can
be reached at 718-261-1700, 516-466-4422, or toll
free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr.
Fatoullah is also a partner with Brightside Advisors,
a wealth management fi rm with offi ces in New York
and Los Angeles. This summary is not legal advice and
does not create any attorney-client relationship. This
summary does not provide a defi nitive legal opinion
for any factual situation. Before the fi rm can provide
legal advice or opinion to any person or entity,
the specifi c facts at issue must be reviewed by the
fi rm. Before an attorney-client relationship is formed,
the fi rm must have a signed engagement letter with a
client setting forth the Firm’s scope and terms of representation.
RONALD FATOULLAH
ESQ, CELA*
/WWW.QNS.COM
