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Estate, Powers and Trusts, § 3-4.4: Conveyance of Property of an Incompetent or Conservatee

Under New York law, in order to make a will the testator must have what is referred to as testamentary capacity. This means that the testator must be at least 18 years old and he or she must have the mental capacity to make a will. In the absence of mental capacity at the time that the will was executed, the will may be invalidated by the Surrogate’s Court. However, it is often the case that the testator makes a will and disposes of property, and then later becomes incompetent. Under New York Estates, Powers and Trusts Law, any property that was disposed of in a will before the person became mentally incompetent is valid. If you are concerned about a testamentary gift or a conveyance of property made by a person who is under a conservatorship, discuss your concerns with an experienced New York estate administration lawyer.

Conveyance of property of an incompetent or conservatee, previously disposed of specifically by will, not revocation or ademption

If a person is deemed incompetent or has been placed in a conservatorship, but disposed of property in his (or her) will while he was competent, the testamentary gift is valid. In addition, if a conservator or a committee sells the that property, the testamentary gift is not revoked or adeemed. The testamentary gift remains valid and the beneficiary is entitled to the proceeds of the sale of the property. Thus, a conservator cannot void a testamentary gift made by a conservatee, as long as the gift was made while the person had testamentary capacity.

Lack of testamentary capacity

If it is determined that a testator lacked testamentary capacity at the time he made his will due to being mentally incompetent, before the will is admitted to probate the Surrogate’s Court judge may determine that the will is invalid, and as a result the decedent’s assets will be distributed according to the rules of intestate succession. If you have concerns about the estate of a loved one who has been deemed mentally incompetent, discuss your concerns with a New York estate administration lawyer.


Lauren wrote a will that left her country house in to her cousin, Sue. Several years after writing the will, Lauren was in a car accident and suffered a severe brain injury that left her mentally incompetent. A conservator was appointed to care for her financial affairs. Because of her condition, the conservator received approval to sell some of her property including her country house since no one was using it and the upkeep was expensive. After Lauren passed away, Sue learned that she was to receive the country house and was surprised that the conservator had sold it. She demanded the proceeds from the sale. Under New York law, Sue has the right to receive such proceeds or any portion thereof that is left in the estate and traceable to the sale of the house.

Related Statutory Provisions
  1. Revocation of wills;  effect on codicils: Estates, Powers and Trusts, § 3-4.1
  2. Agreement to convey property previously disposed of by will not a revocation: Estates, Powers and Trusts, § 3-4.2
  3. Revocatory effect of a conveyance, settlement or other act affecting property previously disposed of by will: Estates, Powers and Trusts, § 3-4.3
  4. Revocation or alteration of later will not to revive prior will or any provisions thereof: Estates, Powers and Trusts, § 3-4.6
Estates, Powers and Trusts, § 3-4.4- Conveyance of property of an incompetent or conservatee, previously disposed of specifically by will, not revocation or ademption

In the case of a sale or other transfer by a committee or conservator, during the lifetime of its incompetent or conservatee, of any property which such incompetent or conservatee had previously disposed of specifically by will when he was competent or able to manage his own affairs, and no order had been entered setting aside the adjudication of incompetency at the time of such incompetent's death, or the conservatorship continued through the date of the conservatee's death, the beneficiary of such specific disposition becomes entitled to receive any remaining money or other property into which the proceeds from such sale or transfer may be traced.

Contact the Law Offices of Stephen Bilkis & Associates

If a loved one has been deemed mentally incompetent, and you have concerns about transactions made by a conservator or committee, contact an experienced estate administration attorney in New York. It is important to ensure that actions taken by the testator when he or she was competent honored. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters related to drafting wills and other estate documents, as well as matters related to will challenges, estate litigation, and estate administration. Contact an experienced estate administration lawyer serving New York at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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