Court Awards Compensatory and Punitive Damages, and Attorney Fees, for Fraud in Probating Will
Stacey Castor (“Stacey”) made national news in 2007, arising from the 2005 murder of her husband, David Castor, Sr., (“Decedent’) as well as the attempted murder of her own daughter. Stacey was convicted of the murder. Having apparently also murdered a prior husband, Stacey became known as the “Black Widow.”
The Castor case recently moved from the criminal to a civil forum, in the form of a lawsuit brought by the son of the Decedent, David Castor, Jr. (“David” or “Plaintiff”), against Stacey and Lynn and Paul Pulaski ("Pulaskis”). David brought the suit in Supreme Court, Onondaga County, seeking recovery from the Pulaskis and from Stacey for fraud and conspiracy surrounding the probate of the Last Will and Testament of the Decedent. After the death of Decedent, Stacey had convinced the Pulaskis to sign their names as witnesses to a false will, benefiting her. The forged Will left Decedent’s estate to Stacey, and was considered in the criminal prosecution of Stacey as a prime motive for the murder of her husband.
The Supreme Court, Onondaga County handed down its decision on December 14, 2011.
During the course of the trial, the Pulaskis had testified that they had been duped by Stacey, and that their motives were good. Lynn Pulaski testified that Stacey had been her best friend. She had felt terrible because of what she had then thought was the suicide of Stacey’s husband, and she wanted to help Stacey out settling the Decedent’s estate.
The Supreme Court Justice (Paris, J.) was not buying it, concluding that,
[b]ased on the evidence and all the pleadings that make up the record of this particular case, including their testimony, it is obvious that Defendants Pulaski were not innocent pawns. They knew what they were doing was wrong and bore false witness to both the Will and Attestation Clause without any hesitancy or reservation. Thereafter, they executed the Attesting Witness Affidavits that they also knew were false. From the record, it is clear that they kept these falsehoods from the Surrogate’s Court and Plaintiff to his detriment throughout the estate proceedings. Defendants Pulaski only ‘came clean’ when the District Attorney’s investigators came knocking on their door and they were given immunity in return for their cooperation and testimony in the criminal prosecution of Co-Defendant Stacey Castor.
The Court continued:
[w]hile the genesis of this action is the heinous crime committed by Defendant Stacey Castor, Defendants Pulaski compounded the crime through their admitted dishonesty… Plaintiff was contesting the purported Last Will and Testament of his father, David W. Castor, Sr., being offered for probate by Defendant Stacey Castor. He withdrew his objections, as he credibly testified, in the face of Defendant Pulaskis’ subsequent execution of the Attesting Witness Affidavits… Defendants Pulaski admitted that they signed in 2005 as witnesses to Decedent’s Will which was dated 2003. Their reaffirmance of this falsehood by signing the Attesting Witness Affidavits, not only harmed Plaintiff, but also subjected the Surrogate’s Court to needless and unwarranted proceedings, thereby detracting from the orderly administration of that Court’s normal, proper and legitimate proceedings.
The Supreme Court went on to find that all three Defendants, the Pulaskis and Stacey, were jointly and severally liable to Plaintiff. The Court assessed both compensatory and punitive damages against all the Defendants, and not just against Stacey, the murderer. As to the Pulaskis, the Court noted that their actions had “compelled Plaintiff to withdraw his objections to the probate of the Will and hoodwinked and deceived the Surrogate’s Court into probating a fraudulent instrument.” Their conduct “was so repugnant and reprehensible so as to satisfy the threshold of moral culpability necessary to allow the imposition of punitive damages."
Finally, in an interesting and significant further holding, the Court determined that the Plaintiff was entitled to the recovery of his attorney fees against the Defendants, including the Pulaskis.
Issues of Undue Influence
Undue influence is an issue commonly associated with Surrogate’s Court proceedings. Indeed, it is often the linchpin to the outcome of a matter, and as such, relevant to its strategy. This is most pointedly revealed by opinions rendered by the Surrogates of New York and Kings County this year, in which the issue of undue influence played a primary role in connection with a contested probate proceeding.
In In re Moles, N.Y.L.J., Apr. 18, 2011, p. 23 (Sur Ct, New York County), the preliminary executors of the estate moved for summary judgment dismissing the objections of the decedent’s nephew, who was the beneficiary of a prior will executed thirty years earlier than the propounded instrument. The objections alleged, inter alia, that the instrument was not duly executed, and that the instrument was procured by the fraud and undue influence of the decedent’s long-time companion, who was the sole beneficiary of the estate, and the named executor along with the attorney-draftsperson.
The undisputed record revealed that the decedent had a history of alcohol abuse for which she was hospitalized and later rehabilitated. Upon completion of her rehabilitation, she returned to New York City where she retained the services of a personal aide whom resided with her until her death twenty years later. Over the course of her employ, there was no dispute that the decedent and her aide became inseparable, spending every day together, and traveling domestically and overseas. Further, there was no dispute that the decedent was capable of making financial and personal decisions regarding her investments and health care.
The decedent’s treating physician testified that she always found the decedent fully responsive and rational. This was substantiated as well by the attorney-draftsperson of the instrument, who stated that he found the decedent alert, coherent and able to convey detailed information regarding her life situation and family.
Notably, the will execution was videotaped and supervised by the draftsperson’s colleague.
In granting the proponents summary relief, the court rejected the notion that the decedent’s early alcoholism impaired her capacity to execute a will, as well as the testimony of the videographer relied upon by the objectant, who testified that the decedent had difficulty identifying the President of the United States. The court held that this evidence paled in light of the reports and testimony of the professionals who treated and worked with the decedent during the period surrounding the execution of the instrument, all of which indicated that she possessed the minimal capacity required to make a valid Will.
As to the issue of undue influence, the court concluded that the objectant had failed to submit any evidence that the decedent’s aide had compelled or constrained the decedent to do anything against her free will. In fact, the objectant admitted that he saw the decedent at most one to two times a year, and that her other family members rarely visited her.
The court found it significant that the attorney-draftsperson of the instrument testified that the provisions of the Will were derived from instructions given to him by the decedent with no involvement of the decedent’s aide. To this extent, the court opined that the lack of involvement by the proponent in a will’s drafting and execution is inconsistent with any inference of undue influence, even where the disinherited party is a close family member. Further, the court held that even assuming the existence of a confidential relationship between the proponent and the decedent, it was counterbalanced by the evidence of the strong affection between the decedent and her aide during their twenty year relationship, the decedent’s expressed desire to leave her aide her entire estate, and her aide’s lack of involvement in the drafting of the Will.
Finally, the court concluded that the objectant had failed to produce a modicum of proof that anyone induced the decedent to execute her Will based upon a false statement.
In comparison to the holding in In re Moles, the court in In re Carter, N.Y.L.J., Apr. 18, 2011, p. 25 (Sur Ct, Kings County), found that the inference of undue influence required that the propounded instrument be denied probate. The facts of the case are in stark contrast to those in Moles and substantiate the differing opinions.
In Carter, the propounded instrument left the decedent’s entire estate, but for 25% percent of any cash due and owing to the decedent’s sole surviving heir, her sister, to a complete stranger (Frazier), who was also named the executor,. The instrument also directed that in the event the decedent’s sister should be admitted to a nursing home, her share should pass instead to Frazier, and that Frazier pay an amount, not to exceed 11 % of the residuary estate, to charities of his choice.
The record revealed that Frazier was 40 years the decedent’s junior, was not related to the decedent, yet, was her self-described caretaker, and that he was an instrumental force behind the execution of the propounded instrument. The court held that, under these circumstances, as well as events described in its own files and through the testimony of Frazier, an inference of undue influence existed requiring a hearing. Notably, the court found that Frazier had been previously appointed as fiduciary in a number of other estates of women significantly older than him, and with whom he had no relationship, that were strikingly similar to the factual situation involving this decedent.
Based on the testimony and evidence adduced at the hearing, the court concluded that Frazier had engaged in a systematic course to take over the personal and financial affairs of the decedent, whom he knew had been diagnosed with dementia, much as he did in the case of countless other elderly and frail women to whom he ingratiated himself. He moved into her home, put his name on her bank accounts, monitored her telephone calls, put her under surveillance and held her health care proxy. Significantly, the record also disclosed that in 2006, when the decedent was overtly suffering mentally, and when no attorney would draft a Will for her, he allegedly acceded to her insistence upon executing a new Will by retyping a prior Will of the decedent, with the decedent’s handwritten changes, and taking the decedent to her doctor’s office to have it signed and witnessed.
At the conclusion of the hearing, the court concluded, inter alia, that Frazier’s testimony gave rise to a strong inference of undue influence, based in particular, upon his complete insinuation into the decedent’s life and financial affairs, the decedent’s dependence upon him for her basic needs, and his involvement in the preparation and execution of the instrument which made him the primary recipient of her estate. The court held that Frazier offered nothing to rebut this proof, but rather buttressed the result that the Will of the decedent was the product of his own decision-making, and control over its preparation and execution.
Accordingly, probate was denied.
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Motion to Dispense with Testimony of Uncooperative Attesting Witness Denied
In Matter of Smith, 2010 NY Slip Op 20381 (Sur Ct, Bronx County), Surrogate Holzman recently addressed a proponent’s motion to dispense with the testimony of an attesting witness at the SCPA §1404 stage of a probate proceeding. The subject witness had relocated to Florida since the date of the execution of the propounded instrument, and had been uncooperative with the attorney-draftsman, also the attorney for the proponent, for reasons unbeknownst to him. One of the respondent’s daughters opposed the motion.
Ultimately, after being contacted by an investigator hired by the proponent, the witness agreed to a deposition via video conference, assuming she would remain in Florida. Nonetheless, presumably due to disobliging nature of the witness, the proponent sought to dispense with her testimony.
In support of her motion, the proponent argued that that a commission to obtain the subject witness’ testimony was unnecessary in view of the fact that the attorney-draftsman and one attesting witness had already been deposed, and the uncooperative witness had signed a self-proving affidavit at the time of the execution. She further asserted that she would consent to a commission to obtain the witness’ testimony in Florida only if the cost were borne by the party opposing the motion. Indeed, the proponent claimed that funding the commission would be a hardship for the estate because its only asset was a parcel of real property.
In response, the opposing party argued that the cost of the commission could be covered by the sale of the estate’s real property, and that testimony of the second attesting witness was pertinent to clarify the events of the execution ceremony.
SCPA §1405 provides that the testimony of an attesting witness can be dispensed with under limited circumstances. Specifically, pursuant to statute the court must be satisfied that, if living, the witness “cannot with due diligence be found within the state or cannot be examined by reason of his physical or mental condition . . .” (SCPA §1405[1]). Thus, the only scenario in which an out-of-state witness’ testimony may be dispensed with is if his examination cannot be obtained with reasonable diligence; but if the testimony can be obtained, SCPA §1405(2) mandates that it proceed by commission upon the demand of any party. Accordingly, Surrogate Holzman denied the motion, granting the respondent’s daughter’s request that the testimony of the Florida witness proceed by commission.
With respect to the issue of which party would bear the costs of the examinations, the court explained that SCPA §1404(5) provides that the estate is to pay for either, “(1) the first two attesting witnesses within the state or (2) if there is no competent witness within the state, the witness without the state who resides closest to the county in which probate proceedings are pending” (Matter of Smith, 2010 NY Slip Op 20381 , *2 [Sur Ct, Bronx County]). The costs of all other examinations are to be governed by Article 31 of the CPLR (see SCPA §1404[5]). Thus, because one of the witnesses in issue resided within the state, the subject examination fell into the latter category.
According to CPLR 3116(d), “unless the court orders otherwise, the party taking the deposition shall bear the expense thereof”. Consequently, the court opined that because the respondent failed to present good cause to persuade it to deviate from that rule, respondent was to pay for the examination. The court further held that the respondent may proceed with the examination by video conference if she were to find it more cost effective than a commission, and, notably, that the proponent may renew her motion to dispense with the testimony if the examination were not arranged within 90 days of the decision and order.
It appears that the latter portion of this holding is simply a logical extension of the statute. If the party who demanded the examination neglects to ensure its occurrence, it is arguably deemed abandoned. Interestingly, however, the statute includes no such provision.
