New York Nursing Home Abuse Lawyer Blog

In an August 30, 2011 decision, the Hon. Anthony Scarpino of the Westchester County Surrogate's Court granted summary judgment in a will contest proceeding. The court denied the will probate, and dismissed the proceeding.

The decedent passed away in late May of 2009, survived by his wife and six children (five from a previous marriage). The will in question was executed in April 2009, distributing to the decedent's wife an amount equal to her elective share, with the remainder distributed equally among his six children. (An elective share is the percentage of a decedent's estate that a surviving spouse may "elect" to receive should he or she not receive a just portion of his or her decedent's estate through the will. In New York, the elective share is equal to the greater of $50,000 or one third of the estate).

The decedent's daughter from a prior marriage served as the proposed executrix of the estate. The same attorney that drafted the will in question served as the daughter's counsel. The proponent of the will failed to comply with numerous discovery demands, and counsel failed to appear in court numerous times. The objectants filed for summary judgment. Summary judgment can only be granted where there exists no triable issue of fact between what the two adversarial sides present. In support of their motion, the objectants presented several medical documents suggesting that the decedent was suffering from Alzheimer's-type dementia. In light of this evidence, burden fell to the proponent to prove that the will was duly executed in compliance with New York law. Because the proponent was unable to prove that this was the case, the court granted summary judgment and denied the will probate.

Probate is a complicated process. Obviously in this case the court felt that questions of mental capacity outweighed the will that the proponent presented. In a strongly worded opinion, the court essentially calls the will questionable in its formation and execution. This case serves as a prime example of the importance of estate planning. A skilled estate planning attorney can help streamline the probate process, and in some instances, even circumvent it in its entirety, relinquishing the potential burden to the family after a decedent passes on.

Citation: Will of Charles P. Haynes, 2010-140/A, NYLJ 1202514015710, at *1 (Surr., WE, Decided August 30, 2011).

A key facet to President Obama's health care reform initiative has been eliminating health care fraud throughout the United States. Yesterday, charges were announced against 91 individuals, accusing them of fraudulently obtaining approximately $300 million from the Medicare system. One of the most shocking indictments involves a doctor billing Medicare for services provided to the deceased, as well as providing psycotherapy sessions in excess of 24 hours a day.

US Attorney General Eric Holder announced the arrests yesterday with Kathleen Sebelius, Health and Human Services Secretary. FBI Executive Assistant Director Shawn Henry said in a statement: "[T]he health care system is part of our nation's infrastructure, and we must do everything in our power to protect the integrity of Medicare."

On many levels, the Obamacare initiative has been a polarizing issue for the American people. It will certainly remain so througout the upcoming presidential campaign, as both politicians and voters take sides to debate its value, constitutionality, and long-term effects. One issue that does not seem to be in debate, however, is the need to stop Medicare fraud from adversely affecting our elder population and diverting funds from this segment of our population most in need of them. The announcement of these arrests yesterday marks a victory for the fight against Medicare fraud as well as for our elderly population much in need of Medicare's continued financial support.

Website Resource: 91 charged with Medicare fraud across U.S.

Washington Post, Jerry Markon, September 7, 2011