Decedent's Purported Transfer of Residence To Wife Fails For Non-Delivery of Deed
In Matter of Ross, the Nassau County Surrogate’s Court canceled the recording of a deed pursuant to which the decedent allegedly conveyed ownership of his residence to his wife, Gladys. The court did so because it determined, after a three-day trial on the merits, that while the decedent executed the deed, he did not deliver it to his wife during his lifetime. Thus, the alleged transfer was ineffective.
Hard cases, it is said, make bad law. It is not unusual, especially in matters concerning decedents’ estates, that the facts of a case are such that a court’s rigid adherence to the law results in injustice and hardship. Ross, however, was not one of those cases. I submit that it is impossible to review the facts of the case and feel sympathy for the decedent’s widow.
The decedent executed a Will in November 2004. At that time, the decedent rejected his attorney’s suggestion that he simply bequeath his house outright to Gladys, indicating that it was not his desire at that time to do so. However, about a month later, the attorney prepared a deed at the decedent’s direction conveying the property to Gladys. The decedent did not ask his attorney to record the deed, however; the decedent told his attorney that he intended to take the deed with him. It was clear to the decedent’s attorney that the decedent “was not going out to record it himself".
The evidence elicited at trial concerning non-delivery of the deed was, simply put, overwhelming.
First, two years after executing the deed, the decedent executed another Will -- which was ultimately admitted to probate. That Will provided that the residence be placed in a marital deduction trust for Gladys’ benefit. Notably, the attorney draftsman of the Will testified that Gladys was present at all of the meetings with the decedent regarding his estate plan, and never made any mention of a deed purporting to convey the property to her. The attorney draftsman testified that she gave no indication during the meetings that she believed she already owned the property which the decedent intended to place in trust for her benefit.
Second, Gladys signed the probate petition indicating that the residence was an asset of the decedent’s estate at the time of his death. She also participated in obtaining an appraisal of the property, consistent with the proposition that the property was an estate asset.
Third, after friction arose among the co-executors and they retained separate counsel, Gladys insisted that the house be sold. She executed a contract of sale of the property to a third party. Her co-executors also executed the contract. That contract, prepared by Gladys’ attorney, initially identified Gladys as the seller of the property because the person preparing the contract was under the mistaken impression that Gladys was the owner. However, after discussing the same “at length” with Gladys and her sons, the contract was modified to reflect that the estate was the seller.
Fourth, Gladys made various demands against the estate in connection with her possibly agreeing to forego her statutory right of election. One of those demands was that the subject property be turned over to her.
Fifth, Gladys commenced a proceeding seeking the removal of her co-executors and co-trustees. Among other things, Gladys’s petition alleged that she had been attempting to sell the residence, an asset of the estate, but her co-executors refused to sign a contract of sale.
This was not a “hard case”.
The Court explained that the law presumes that an executed deed was delivered and accepted as of the date of its execution. It further noted, however, that that presumption is rebuttable and “may be repelled by proof of attendant facts and subsequent circumstances, such as . . . declarations of the supposed grantee which are inconsistent with the transfer of the title. . . .”
According to the Court, there was “not a shred of objective evidence” that the deed was ever delivered to Gladys. It noted that, on the contrary, the evidence was overwhelming that Gladys was completely unaware of the deed’s existence until she, in effect, stumbled onto it sometime after the decedent’s death.
Moreover, the Court apparently had serious issues with Gladys’ credibility. At her deposition, Gladys testified under oath that she located the deed in a piece of furniture while packing for her move to California. However, in a prior sworn statement, she alleged that she found the deed while unpacking in California.
Based on all of this, the Court determined that the deed was not delivered to Gladys during his lifetime. The transfer, therefore, was ineffective.
Court of Appeals: Fiduciary's Legal Fees to be Equitably Allocated among Beneficiaries
In Matter of Hyde, 2010 NY Slip Op 05676, decided June 29, 2010, the Court of Appeals held that SCPA 2110 gives Surrogate’s Courts discretion to determine the allocation of attorneys fees paid from the trust or estate to the fiduciary in defending against objections, assuming the fiduciary’s conduct was not deemed so egregious as to require him to be individually responsible for payment.
The facts in Hyde are summarized in detail in a prior post that addressed the Appellate Division’s decision, which has now been modified by the high court. In short, the beneficiaries who decided not to interpose objections to the trustees’ accountings sought an order directing that the trustees’ legal fees in defending against the objections be deducted solely from the objecting beneficiaries’ shares – not from the trust estates generally. That way, the beneficiaries who did not object would not have their inheritance diminished by litigation in which they decided not to participate, and from which they would not benefit.
Although the Surrogate’s Court dismissed all objections to the accountings, it relied on the Court of Appeals’ earlier holding in Matter of Dillon, 28 NY2d 597 (1971), and held that the trustees’ legal fees were to be paid from the trusts generally, and not simply from the objecting beneficiaries’ shares. The Appellate Division affirmed.
Surprisingly, the Court of Appeals did not simply distinguish Dillon from the case before it; the Court reconsidered Dillon. It opined that its decision in Dillon, where it held that SCPA 2110 mandated that the entire estate or trust be charged with the fiduciary’s legal fees, apparently ignored the plain meaning of the statute.
SCPA 2110[2] provides that “ . . . [t]he court may direct payment for [a fiduciary’s legal fees] from the estate generally or from the funds in the hands of the fiduciary belonging to any legatee, devisee, distributee, or person interested.” Noting that legislative intent should be ascertained from the plain meaning of the statute, the Court explained that there exists a presumption against legislative intent for an unjust or unreasonable result. It further stated that its decision in Matter of Ungrich, 201 NY 415 [1911], rather than Dillon, should be used as a guide. Matter of Ungrich, like the Court’s holding in Hyde, focused on fairness. There, it was held that courts should have the discretion to direct whether a fiduciary’s legal fees should be paid by him individually, from the estate generally, or from individual beneficiaries’ shares.
In deferring to the plain meaning of the statute, the Hyde Court directed that Surrogates should assess the sources from which fees are to be paid, considering various factors such as:
(1) whether the objecting beneficiary acted solely in his or her interest or in the common interest of the estate; (2) the possible benefits to individual beneficiaries from the outcome of the underlying proceeding; (3) the extent of an individual beneficiary’s participation in the proceeding; (4) the good or bad faith of the objecting beneficiary; (5) whether there was justifiable doubt regarding the fiduciary’s conduct; (6) the portions of interest in the estate held by the non-objecting beneficiaries relative to the objecting beneficiaries; and (7) the future interests that could be affected by reallocation of fees to individual beneficiaries instead of to the corpus of the estate generally.
According to the Court, none of the above factors are determinative.
In view of the foregoing, the Court of Appeals remanded Hyde to the trial court for an analysis in accordance with its newly established guidelines, and an ultimate determination as to who would bear the cost of the trustees’ legal fees in defending their accountings.
This decision has clearly implemented a process that should result in more equitable allocations of a fiduciary’s legal expenses where applicable. But it may also have the effect of causing potential objectants to weigh the pros and cons of litigation even more carefully, especially when all beneficiaries are not on board with the decision.
Estates May Pursue Legal Malpractice Claims on Behalf of Decedents
The Court of Appeals has rendered a landmark decision, chipping away at privity in holding that an estate fiduciary may maintain a legal malpractice claim against its decedent’s estate tax planning attorneys for negligent representation. Until now, privity, i.e., a legal connection between two parties, was a strict condition precedent to maintaining a legal malpractice claim.
In Estate of Schneider, 2010 NY Slip Op 05281, decided June 17, 2010, the estate argued that the decedent should have been provided advice that would have decreased his estate’s tax liability. Specifically, it was asserted that the decedent’s attorneys should have advised him to transfer, or not to transfer, his $1 million life insurance policy to or from an entity of which he was the principal owner in order to reduce his gross taxable estate.
The Supreme Court dismissed the claim for failure to state a cause of action, but the Court of Appeals reversed. In upholding the claim, the high court equated the relationship between an estate and its decedent to one of privity, or one “sufficiently approaching privity” for purposes of pursuing a legal malpractice action. It aligned its reasoning with that of the Texas Supreme Court, and opined that “‘the estate essentially stands in the shoes of the decedent’ and therefore ‘has the capacity to maintain the malpractice claim on the estate’s behalf’”.
In determining the foregoing, the Court stated that its holding complies with EPTL 11-3.2(b), which permits the fiduciary of an estate to “maintain an action for ‘injury to person or property’ after that person’s death”. The Court further noted that its decision had no altering effect on the strict privity rules against beneficiaries bringing legal malpractice claims against a decedent’s estate planning attorneys.
It would not be surprising if the natural outgrowth of this decision is an increased number of legal malpractice claims against estate planning attorneys.
Fiduciary Relationship Leads to Allegations of Constructive Fraud
In a recent case, a New York County Surrogate denied a motion for summary judgment, holding that a trial was necessary to determine whether the founder of the Benihana restaurant chain, Rocki Aoki, was the victim of constructive fraud perpetrated by his conflicted lawyers. The issue in Estate of Aoki, 5/17/2010 NYLJ 18 (col 3), was the enforcement of releases to a testamentary power of appointment, which, if valid, would deny Mr. Aoiki’s surviving spouse any interest in the Benihana restaurant empire. The movants were two of Mr. Aoki’s children, Devon and Steven.
Mr. Aoki died in 2008 at age 69, survived by his third wife, Keiko, and six children from various relationships. Not bad for a guy who gained notoriety by flipping shrimp tails into his hat and shirt pockets.
Given his less than traditional family tree, it is hardly surprising that Mr. Aoki’s heirs are now litigants in the Surrogate’s Court.
The power of appointment in issue pertained to the Benihana Protective Trust (“BPT”), to which Mr. Aoki transferred all of his rights in Benihana of Tokyo, Inc., a publicly traded company of which he was the sole owner. The trust instrument named Mr. Aoki and his children as discretionary beneficiaries, and provided him with an unlimited testamentary power of appointment over the corpus. Trust and estates attorney Norman Shaw drafted the agreement. He was retained by, and received instructions from, Darwin C. Dornbush, Mr. Aoki’s personal lawyer for 30 years. Mr. Shaw had never met Mr. Aoki.
Mr. Aoki married Keiko in July 2002, four years after the BPT was created. Not surprisingly, Mr. Aoki’s children were concerned that his new wife might influence him to deprive them of some or all of the inheritance they expected. Two of them -- Kevin and Kana -- discussed their concerns, including the lack of a pre-nuptial agreement, with Dornbush. They then proposed to Keiko that she and the decedent sign a postnuptial agreement, apparently acting on Dornbush’s advice. Mr. Aoki did not participate in the conversation, and Keiko refused the request. Kevin and Kana then approached Dornbush and Shaw about protecting their interests as potential beneficiaries of the BPT.
Following a meeting at Dornbush’s office attended by the decedent, Kana and Kevin, the four met again, on September 24, 2002, for Mr. Aoki to sign a codicil to his will and an unrelated consent to an amendment of the BPT. During that brief meeting, Shaw arrived and presented the decedent with a one-page document entitled “Partial Release of Power of Appointment Under New York Estates, Powers & Trust Law §10-9.2.” By signing that document, the decedent “irrevocably” limited his power of appointment to permit him to appoint only his descendants.
Nobody advised the decedent that the release was irrevocable, nor did anyone advise him of the substantial tax consequences of foregoing the marital deduction.
Continue Reading...In Terrorem Clause Construed to Apply to Revocation Proceeding
In a decision issued yesterday by the First Department, the Appellate Division affirmed the Surrogate’s holding that a proceeding pursuant to SCPA §711 to revoke letters testamentary and letters of trusteeship would trigger an in terrorem clause. The petitioner alleged that the fiduciaries failed to inform the decedent of the benefits to which they would be entitled as a result of their fiduciary positions.
The subject in terrorem clause in Hallman v Bosswick, 2010 NY Slip Op 03486 (1st Dept 2010) provided that it would be triggered by any beneficiary who was to commence a proceeding “‘to void, nullify or set aside all or any part’ of the will”. Noting that a revocation proceeding did not fall within the safe harbor provisions of EPTL §3-3.3(b), the Court stated that its determination would be based upon the decedent’s expressed intent.
The respondents, the co-executors and co-trustees whose letters would be placed in issue by the proposed revocation proceeding, had no familial relationship to the decedent. Based on this fact, the petitioner, a child of the decedent, argued that because the will provided no bequests for respondents, the decedent must have intended to limit the scope of the in terrorem clause to challenges against his family members. The Court disagreed. It opined that the decedent’s choice to leave his estate in trusts for his children and grandchildren, as opposed to making outright devises, illustrated an intent to deprive them of complete control over his assets; an intent that was furthered by his nominating non-relatives as co-executors and co-trustees.
The Court also disagreed with the petitioner’s alternate assertion that if the testator had intended the clause to be triggered by the commencement of a SCPA §711 proceeding, public policy should prevent its enforcement. According to the Court, this argument was conditioned upon a rule that the safe harbor provisions of EPTL §3-3.5 are not exclusive, and despite the recent decision of the Court of Appeals in Matter of Singer, 13 NY2d 447 (2009) which stated as much (as discussed in a prior entry), the First Department opined that the language was dicta. Thus, the Court rejected the petitioner’s public policy argument, reasoning that a court’s expansion of the safe harbor provisions should not originate with a lower or intermediate court, but instead with the Court of Appeals.
This last argument is an interesting perspective on Singer, and may pave the way for a conservative interpretation of the Court of Appeals’ decision. Accordingly, we may have to wait for the Court of Appeals to implement its own rule as law before the lower courts will follow suit.
Appellate Division Cites Equitable Factors In Denying Entitlement to Elective Share
This month, the Second Department has issued two important decisions on entitlement to an elective share when a marriage occurred while the decedent lacked the requisite mental capacity to enter into a marital contract. Matter of Berk and Campbell v Thomas were both cases in which a caregiver secretly married the incapacitated individual for whom she worked, in an effort to manipulate a testamentary scheme for her own financial gain. Although the statutory limitations on disqualification from the right of election did not infringe upon the “surviving spouses’” rights to inherit from their respective “husbands” (see EPTL §5-1.2), the Appellate Division followed equitable principles in determining the parties’ respective rights.
In Matter of Berk, 20 Misc 3d 691 (Sur Ct, Kings County 2008), summary judgment was granted to the “surviving spouse” on the issue of her entitlement to an elective share, despite the suspicious circumstances surrounding her marriage to the decedent. A discussion of the lower court’s decision can be found in a prior entry. To briefly recap, the decedent’s “spouse” had been the decedent’s live-in caretaker since 1997. By the time the two secretly married in 2005, he had become completely dependent upon her. In fact, the marriage occurred almost exactly one year prior to his death, when he was 99 years old (she was 47), was suffering from dementia, and had been deemed by a physician to be incapable of entering into binding contracts or managing his social affairs. The lower court dismissed these facts as irrelevant for purposes of determining entitlement to the right of election. Rather, it limited its inquiry to (1) whether the petitioner was the decedent’s surviving spouse upon his death, i.e., whether the marriage was void under the circumstances; and (2) whether any of the disqualifying factors of EPTL §5-1.2 had been met. Because the petitioner demonstrated that she was the surviving spouse at the time of the decedent’s death, as the marriage was potentially voidable but not void according to DRL §7, the Surrogate held that she was entitled to judgment as a matter of law. Indeed, the result of the determination that the marriage was voidable, not void, foreclosed inquiry into the validity of the marriage because no steps were taken to void the marriage during the decedent’s lifetime. But under the circumstances, where the marriage in issue had been kept a secret by the petitioner while the decedent was alive, no such steps could possibly have been taken.
In overturning the Surrogate’s decision, the Second Department recognized the existence of “a triable issue of fact as to whether the petitioner had forfeited the statutory right of election” on equitable grounds. In particular, relying on Campell v Thomas (2010 NY Slip Op 02082 [2d Dept 2010]), the Court stated that the estate had presented evidence that could prove the petitioner was aware of the decedent’s incapacity and inability to consent to marriage, and deliberately took “unfair advantage . . . by marrying that person for the purpose of obtaining pecuniary benefits that becomes available by virtue of being that person’s spouse, at the expense of that person’s intended beneficiaries" (Matter of Berk, 2010 NY Slip Op 02139 [2d Dept 2010]). Thus, the order was modified, denying the petitioner’s motion for summary judgment, and reinstating counterclaims.
In sum, while the lower court’s holding was based upon statutory authority, equity was the cause for its reversal. The Appellate Division explained its rationale for this determination in further detail in its simultaneous decision in the very similar case of Campbell v Thomas.
In Campbell, the decedent was suffering from severe dementia and terminal cancer when he and his short-term caregiver, Nidia, who stayed with the decedent while his daughter went on vacation, were married. Immediately thereafter, while the decedent’s daughter was still away, Nidia transferred the decedent’s Citibank account from the decedent’s name to the couple jointly, and named herself the sole beneficiary of his retirement account.
Continue Reading...Estate Fiduciary Wrongly Deprived of Counsel of Choice?
A recent decision emanating from the Appellate Division, Second Department, Matter of Venezia, implicates two fundamental -- and seldom conflicting -- legal principles. The first of these is that a testator has the right to designate a legally qualified person to administer his or her estate, and that designation is entitled to great deference. And, secondly, a party’s entitlement to be represented by counsel of its choice is a valued right, and any attempt to restrict that right must be carefully scrutinized.
Matter of Venezia was a probate proceeding in which the Surrogate’s Court, Kings County, after a hearing, granted the motion of the objectant to disqualify the nominated executrix from serving as such and reinstated letters of administration previously issued to the objectant.
The objectant’s proffered basis for removal of the petitioner as executrix -- which was accepted by the Surrogate’s Court -- was that the petitioner’s selection of counsel rendered her unqualified to serve. The objectant argued that he and the petitioner’s counsel had been adversarial in a prior conservatorship proceeding and that they had a hostile relationship.
The Appellate Division began its analysis by noting that “the right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded[,]” although “the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely” (citations omitted).
The court noted, however, that the evidence adduced at the hearing demonstrated that the objectant -- not the petitioner’s counsel -- was the source of the hostility between them. That fact, combined with the fact that there was no evidence that the petitioner was unqualified to serve as executrix or that she committed misconduct, lead to a determinations that the Surrogate’s Court erred in disqualifying the petitioner from serving as executrix.
Nevertheless, the Appellate Division directed that the petitioner retain new counsel to represent her, “given the hostility the objectant harbors for the petitioner’s counsel, and since it is unlikely that the objectant will cooperate with counsel in the future. . . .” Notably, the court made this determination notwithstanding its observation that “the record does not demonstrate that counsel retained by the petitioner acted improperly[.]”
So, let’s get this straight. The duly nominated fiduciary of a decedent’s estate hired an attorney of her choice. That attorney did nothing improper. Yet, due to “hostility” between the attorney and the objectant -- hostility created by the objectant -- and the fact that the objectant was not likely to cooperate with the petitioner’s counsel in the future, the court directed the petitioner to retain new counsel.
The Court of Appeals has made clear that a party’s entitlement to be represented by counsel of its choice is “a valued right and any restrictions [thereto] must be carefully scrutinized” (S&S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437 [1987]). It is not clear from the Appellate Division’s decision that it adequately considered this principle when it deprived the petitioner of her counsel of choice.
Trustee Permitted to Amend Accounting to Provide for Commissions
In Estate of Homelsky, 1/20/2010 NYLJ 27 (col 1), a Nassau County Surrogate's Court case, the Trustee, an attorney, moved to amend his final accounting to include Trustee commissions claimed to be due him.
The Trustee’s proposed amendment sought only that portion of annual Trustee’s commissions allocable to principal, not the income portion. The amount claimed was in excess of $183,000. A Trust beneficiary objected to the proposed amendment, asserting that in a Receipt and Release Agreement circulated prior to the judicial accounting, the Trustee had stated that he was waiving all Executor and Trustee commissions. The beneficiary further asserted that the Trustee was not entitled to commissions because he failed to provide the beneficiaries with the annual statement required under SCPA §2309(4).
The Court granted the motion. It found that a statement in the proposed Receipt and Release Agreement waiving commissions clearly indicated that it was made to settle the Account without the need for a judicial accounting proceeding. Since not all of the interested parties signed the agreement, the Trustees had to commence a judicial proceeding, which indeed became contested. The Court stated that “under these circumstances . . . the Trustee should not be held to the terms of the agreement.” As to the argument concerning failure to provide an annual statement, such an annual statement under the statute is to be provided to a person receiving income from the Trust. The Court found that since the Trustee was not seeking the commissions chargeable to income, this argument provided no basis upon which to estop the Trustee from seeking commissions.
The Court decided, but did not pass on the assertion made by Petitioner’s counsel that even if the Trustee were deemed to have waived commission, such a waiver may be withdrawn, citing a number of cases such as Matter of Grace, 61 Misc 2d 51 (Sur Ct, Nassau County 1970); Matter of Grace Candis Parris, 5/17/2005 NYLJ 32 (col 2) (Sur Ct. Kings County).
No "Wiggle Room" In After-Born Statute
In Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), Nassau County Surrogate John B. Riordan declined to expand the reach of EPTL 5-3.2 (the so-called “after-born statute”) to non-marital children known to, or acknowledged by, the decedent after execution of his will.
In Gilmore, a probate proceeding, two non-marital children sought to have their status as beneficiaries determined as a preliminary matter. The parties consented to have the Court assume the truth of the claimants’ allegations for a determination of whether as a matter of law those allegations stated a cause of action entitling the claimants to after-born status.
The decedent died in January, 2007, survived by eleven children, including three from a first marriage, four from a second marriage, and four alleged non-marital children. The propounded will, however, benefited only one child from the first marriage. That child, also the petitioner and named executor, was to inherit the several-million-dollar estate. The claimants were two non-marital children born prior to the decedent’s execution of the will, but allegedly became known to and were acknowledged by the decedent only subsequent to the will’s execution.
The court explained that EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted as a beneficiary a child born after he executed his will -- “If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovided for by some settlement, the after-born shares in the gift to existing children.” Pursuant to an amendment to the statute (which merely codified existing case law), non-marital after-born children who can duly establish their inheritance rights are entitled to the same benefits under the statute as marital children.
The claimants in Gilmore alleged -- and it was accepted as true for purposes of the motion -- that nearly a decade after the decedent executed his will he underwent DNA tests which revealed to him for the first time that he was their biological father. Although the claimants were born long before the execution of decedent’s will, they claimed that as they were only known or acknowledged by their father after execution of his will, they should be accorded the same presumption of inadvertent disinheritance as after-born children.
The Court rejected the claimants’ argument, however, noting that pursuant to the clear and unambiguous language of the statute, a child is entitled to after-born rights only if born after execution of the will. The only reported exception to this rule -- for a child adopted after the execution of a will, even though born previously -- had no application to the case at bar.
Because the language of the statute was clear, speaking only of a “child born after the execution of a last will” (EPTL 5-3.2 [a]), the Court refused to extend the scope of the statute to a non-marital child who is known or acknowledged by a decedent only after execution of his will. “To engraft exceptions where none exist,” according to the Court, “are trespasses by a court upon the legislative domain”
Summary Judgment Granted, Dismissing Objections and Admitting Will to Probate
In recent years, Surrogate’s Courts have become increasingly inclined to grant motions for summary judgment in contested probate proceedings when warranted. A decision issued last week in Monroe County is yet another example of this trend. While the evidence presented by the objectants in this particular case appears to be exceptionally weak, the following analysis provides a cohesive illustration of the considerations and standards that Surrogates routinely utilize in analyzing typical objections.
In Matter of Feller, 2010 NY Slip Op 50001(U), eight of the decedent’s eleven known distributees filed objections to probate, alleging the customary lack of due execution, lack of testamentary capacity and undue influence. The decedent executed a last will and testament nine months prior to her death, leaving her estate to ten charities and four individuals in equal shares, and naming the attorney-draftsman as executor. The New York State Attorney General’s Office filed a motion for summary judgment, seeking to dismiss the objections.
Due Execution
The objectants contended that the will was not duly executed within the requirements of EPTL 3-2.1 because the attorney-draftsman/proponent, not the testator, requested that that the witnesses act. But the testimony of the attorney-draftsman demonstrated that the testatrix responded in the affirmative when questioned as to whether she wanted those present to witness the execution of the instrument. The Court opined that this conduct coupled with the circumstances surrounding the execution ceremony satisfied the due execution requirements of EPTL 3-2.1. Indeed, “[a]ttorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied . . . and . . . publication and instruction . . . is not required to be in any ‘ironclad ceremonial or ritualistic language’” (Matter of Feller, supra, citing In re Douglas’ Will 193 Misc 623, 631-632 [Sur Ct, Broome County 1948]).
Testamentary Capacity
With respect to testamentary capacity, the Court noted the presumption in favor of capacity when a will is drafted by, and the execution supervised by, an attorney. In this case, the Court held that the proponent established a prima facie case of the requisite capacity based upon the following facts:
· The decedent herself sought the services of the attorney-draftsman;
· The decedent personally met with the attorney-draftsman and brought detailed notes as to her desired estate plan;
· The decedent told the attorney-draftsman about her familial situation;
· The witnesses were aware of the decedent’s involvement in her estate planning, and testified that she appeared to have no visual, auditory or cognitive difficulties; and
· The decedent made specific and accurate changes to the draft of the will.
In fact, the only basis for the allegation of lack of capacity was one of the objectant’s observations that the decedent had appeared preoccupied, reserved and distracted during a visit that occurred around the time that the will had been executed. Citing holdings of the Appellate Division that evidence of sadness or confusion alone is insufficient to prove lack of capacity, the Court rejected this contention. The Court further explained that a diagnosis of dementia, Alzheimer’s, or simply old age, without more, would also be insufficient to override a prima facie showing of capacity (id., citing Matter of Nofal, 35 AD3d 1132 [3d Dept 2006]; Matter of Castiglione, 40 AD3d 1227 [3d Dept 2007]; Matter of Minasian, 149 AD2d 511 [2d Dept 1989]; Matter of Hedges, 100 AD2d 586 [2d Dept 1984]).
Undue Influence
Addressing the claims of undue influence, the court reiterated that it is an objectant’s burden to demonstrate by a preponderance of the evidence, (1) motive, (2) opportunity, and (3) actual undue influence. Undue influence must amount to “a moral coercion, which restrained independent action and destroyed free agency or which . . . constrained the testator to do that which was against his free will and desire . . .” (id.,quoting Children’s Aid Society of NY v Loveridge, 70 NY 387, 394 [1877])., The Court further noted that undue influence may proved by circumstantial evidence, “but the circumstances must lead to it not only by a fair inference but as a necessary conclusion” (id., quoting In re Will of Henderson, 253 AD 140 [4th Dept 1937]).
The objectants’ claim of undue influence alleged that the proponent persuaded the testator to change her funeral home of choice to one that was a client of the proponent. However, the proponent testified that he made no recommendations regarding the decedent’s testamentary plan, but tried to persuade her to choose another executor. In addition, the record demonstrated that every time the decedent met with the proponent regarding her estate plan, she was not accompanied by anyone. In view of these facts, the Court held that the Objectants failed to meet their burden in connection with their allegations of undue influence (see Matter of Feller, supra).
Interestingly enough, there was no discussion of a confidential relationship between the decedent and proponent in this case, and thus, the burden of proof did not shift. After all, an attorney-client relationship often gives rise to a confidential relationship, and a consequential presumption of undue influence (see e.g., Weber v Burman, 22 Misc 3d 1104[A] [Sup Ct, Nassau County 2008]; Estate of Olson, 5/16/2006 NYLJ 33 [col 4] [Sur Ct, Richmond County]). Perhaps this was not considered because the attorney-draftsman was not a beneficiary, but I would submit that such a relationship is arguably relevant here, in light of the allegations.
