Monthly Archives: March 2015

Yes, I am of sound mind, and I come in peace from Alpha Centauri

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Probate Litigation on Mar 27, 2015.

We have been talking about capacity and estate planning. Pennsylvania law states that a will is valid only if it is executed by a person who is 18 years old and of sound mind. The question we have been trying to answer — and that experts actually admit is unanswerable — is what does a sound mind, aka capacity, look like? In 1975, the movie “Grey Gardens” chronicled the day-to-day life of Edith “Big Edie” and daughter “Little Edie” Beale, of East Hampton. They lived in what was universally described as “a crumbling mansion” and in close company with a number of cats and raccoons. The Health Department found that their home, littered with organic and inorganic waste, violated every building regulation in the book. Watching the film or reading about the women leaves one with the definite impression the two Edies were eccentric. Can someone be eccentric and of sound mind? In Pennsylvania, the answer is a typical legal answer: maybe. State case law says that eccentric, even inappropriate behavior may be used as evidence to prove a lack of capacity, but there must be more. On the other hand, the courts treat unorthodox religious beliefs a little differently. In a 1903 case, the testator was determined to be of sound mind even though he believed he could communicate with the dead through a medium. The tipping point was not the need for an intermediary (the medium), but, rather, the fact that nothing in the will indicated that the […]


Are beauty and capacity in the eye of the beholder?

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Probate Litigation on Mar 20, 2015.

Ask any baby boomer you meet on the street if he or she is having little memory glitches, and you are likely to get more than a simple “yes.” If your experience is anything like ours, the answer will be, “Yes, and it drives me nuts!” It is frustrating to forget someone’s name mid-sentence, or to lose track of your glasses or your checkbook (remember checkbooks? like credit cards, but bigger), or to blank out on whether the Eagles or the Patriots play for Philadelphia. The last could get you into deep trouble if it happens in the wrong bar. But the occasional memory lapse or search for a common word should not be alarming, according to a friend’s internist. A memory care specialist told another friend that if you can count backward from 100 by sevens and spell the word “world” backwards, you are not suffering from dementia. Maybe not dementia, but do you have capacity? Are you of sound enough mind to have “intelligent knowledge of the natural objects of [your] bounty?” We ask because that is the definition the Pennsylvania courts will use if anyone challenges your capacity at the time you signed your will or your power of attorney. As we said in our last post, you need “testamentary capacity” to execute estate planning documents. You cannot be under duress, and you have to know what you’re doing at least as well as a “normal person” would under the same circumstances, according to Black’s Law Dictionary […]


Capacity schmapacity! She sounded OK to me!

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Probate Litigation on Mar 15, 2015.

A call from a friend raised one of the more difficult issues of probate law. Her mother had just executed a power of attorney that removed our friend as her agent and appointed our friend’s unscrupulous sister in her place. While this would be troubling under normal circumstances, it was particularly appalling to our friend, because her mother has suffered from dementia for several years. How, our friend asked, could anyone think her mother could understand what she was doing? In order to execute a valid will or power of attorney or health care directive or any testamentary document, a person must have “capacity.” This is true in Pennsylvania and every other state. What is also true here and elsewhere is that it may not be easy to prove that someone had or did not have capacity. Pennsylvania statute dictates that a person must be at least 18 years old and of sound mind in order to execute a will or other testamentary instrument. The term “sound mind” has been the subject of much debate over the years — rather, debate and litigation. One thing everyone agrees on is that “sound mind” means “capacity” — about as helpful as defining “ribaldry” as “ribald talk or behavior.” It’s as if the court or Merriam-Webster were saying, “If you don’t know by now, I’m certainly not going to tell you.” Fortunately, the Pennsylvania Supreme Court has considered the term and has come up with a general definition of “sound mind.” Sound mind […]


Parents as intestate heirs or ‘No, really, where have you been?’ p2

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Estate Planning on Mar 9, 2015.

Parents should not outlive their children, but it happens. A car accident, a terminal illness, a congenital anomaly, a drug overdose — the world is a dangerous place, and life is fraught with risks. Parents try to keep their children safe and to teach them how to protect themselves from all the bad things that can happen. Parents cannot, however, turn back the clock or take the child’s place in that car or in that examination room. In our last post, we were talking about actor Cory Monteith’s lack of an estate plan at the time of his death in 2013. The rules of intestacy dictate that his parents will take equal shares. However, his mother pointed out in court documents that his father had been absent from Monteith’s life for more than a decade. Monteith was 9 years old when his parents split; his father did not pay child support and did not spend time with the boy. They reconnected before Monteith died, but, according to his mother, that was not enough. His father agreed and relinquished his share of the estate. Pennsylvania law has some strict laws about what a parent must do in order to qualify as an intestate heir. The state has limited those behaviors, however, to periods of one year or greater. If a parent walks out in January but comes back from Christmas, he or she could still inherit. First, a parent must support the child or, at the very least, not desert the […]


Parents as intestate heirs or ‘Where have you been all my life?’

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Estate Administration on Mar 1, 2015.

It really does not pay to assume anything when you’re dealing with probate and estate planning. First, you never know what a day will bring. As harsh as it sounds, there is no reason on earth to postpone writing an estate plan, because your loved ones could need it tomorrow. Second, don’t assume that you can just let the state intestacy laws take care of your property, that your plans and state law mesh nicely if you don’t have a will. The rules of intestate succession — that is, the state laws that dictate how your property will be distributed if you die without a will — may be more complicated than you think. The estate of actor Cory Monteith offers an example of one particular complication: the absent parent. Monteith died in 2013 at the age of 31. Without a wife or children, the general rule is that his parents will share equally in his estate. But Monteith’s parents split up when he was 9, and the actor had little contact with his father for the next 10 or 15 years. Wouldn’t it be unfair, then, for his absentee father to receive half of Monteith’s estate? Both the law and Monteith’s mother thought so. She was able to petition the court in the matter, and Monteith’s dad eventually signed a document that confirmed that he had not paid child support and had not had much contact with Monteith while he was growing up. So there is an exception. It […]