The Slayer Rule Revisited
As I wrote in a prior post, dated February 25, 2011, concerning the Estate of Dianne Edwards, the “slayer rule” articulated by the Court of Appeals in Riggs v. Palmer provides that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (Riggs v. Palmer, 115 N.Y. 506, 511 [1889]). Although forfeiture does not occur in cases involving accidental killings, self-defense, and disabilities that negate a culpable mental state, the maxim articulated in Riggs has been utilized to preclude a person who intentionally kills another from taking as a beneficiary of his or her victim’s estate.
Relying upon Riggs, Suffolk County Surrogate John M. Czygier, Jr. recently held in Matter of Edwards that, under the slayer rule, an intentional killer forfeited his right to inherit not only from the estate of his victim, but also the estate of the victim’s post-deceased legatee (see Matter of Edwards, NYLJ, Apr. 13, 2012, at 35 [Sur. Ct., Suffolk County]). Surrogate Czygier’s finding was noteworthy for a variety of reasons, not the least of which was that the intentional killer was the sole beneficiary of the estate of his victim’s legatee (see id.).
In Edwards, Brandon Palladino (“Brandon”) was convicted of Manslaughter in the First Degree and sentenced to a twenty-five year term in prison in connection with the death of his mother-in-law, Dianne Edwards (“Dianne”) (see Carol MacGowan, “Fight Over Estate Continues After Sentencing”, Newsday, Feb. 3, 2011). Surrogate’s Court litigation arose after a party acting for Brandon’s benefit sought to ensure that Brandon received a substantial portion of Dianne’s estate, as beneficiary of his deceased wife Deanne Palladino’s (“Deanna”) estate (see Edwards, supra).
Dianne died, testate, leaving her entire estate to her daughter, Deanna (see id.). Although Deanna survived Dianne, she died of an accidental drug overdose, leaving no will (see id.). While, under normal circumstances, Brandon, as Deanna’s surviving spouse (with no issue), would have inherited Deanna’s entire estate, including any bequests that she received from Dianne, the circumstances in Edwards were highly unusual (see id.).
Dianne’s surviving relatives argued that, under the slayer rule, Brandon forfeited any interest in Dianne’s estate that he otherwise might have had in the assets of her estate, even indirectly as a beneficiary of Deanna’s estate (see id.). Surrogate Czygier agreed, finding that Brandon could not inherit from Dianne (see id.). In doing so, the Surrogate explained that “one who takes the life of another should not be allowed to profit from his wrongdoing” (see id.). But for Brandon’s wrongdoing, there “would be no inheritance to be obtained through his wife Deanna” (see id.). As a result, considering Brandon’s wrongdoing and his conviction, Brandon forfeited any right he otherwise might have had to inherit Dianne’s property as Deanna’s sole distribute (see id.).
The application of the slayer rule has been extended beyond those situations in which intentional killers seek to take as beneficiaries of their victims’ estates. Indeed, as Edwards demonstrates, the slayer rule has been utilized to deny intentional killers the right to inherit property belonging to their victims, whether directly as beneficiaries of the victims’ estates or indirectly through the estates of the victims’ legatees or distributees. The extension of the slayer rule is consistent with standards of common sense and decency.
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Standing of "Potential Heirs" to Sue for Their Parents' Assets
Estate litigation oftentimes arises when parents favor one or more of their children over others in their estate plans. Fortunately, at least for the parents, they typically do not have to deal with the issues involved in the litigation, as they are deceased by the time that it arises. As the Second Department’s decision in Sharrow v. Sheridan demonstrates, however, disfavored children do not always wait for their parents to pass before commencing litigation concerning the parents’ assets. Indeed, some disfavored children have gone so far as to sue their parents and siblings as “potential heirs” of the parents’ estates. This blog entry explains why such a strategy will prove unsuccessful.
In Sharrow, the plaintiff commenced an action against his mother and his sister, seeking to impose a constructive trust on certain assets that the mother transferred to the sister (see Sharrow v. Sheridan, 91 AD3d 940, 940-41 [2d Dept 2012]). The plaintiff alleged that a constructive trust was warranted because the sister exercised duress and undue influence on the ailing mother in pressuring her to transfer the assets to the sister (see id.). When the mother and sister moved to dismiss the plaintiff’s complaint, the plaintiff asserted that he had standing to seek a constructive trust over the assets formerly belonging to his mother as a “potential heir” of her estate (see id.).
The Supreme Court granted the defendants’ motions to dismiss and the Appellate Division affirmed (see id.). In affirming, the Second Department found that the plaintiff lacked standing to seek to impose a constructive trust on the assets that his mother transferred to his sister (see id.). As the court explained, for as long as she was alive, the mother had “the absolute right to change her intentions regarding the distribution of her assets” (see id.). Accordingly, the court concluded that the plaintiff’s interest as a “potential heir” of his mother’s estate was a “potential, speculative interest” that did not vest him with standing to prosecute a constructive trust claim concerning his mother’s former assets (see id.).
Of course, Sharrow is not the only case in which a child sought to void an inter vivos transfer made by a parent as a potential heir of the parent’s estate. In Schneider v. David, the plaintiff commenced an action to impose a constructive trust on real property that her mother transferred to her brother (see Schneider v. David, 169 AD2d 506, 506-08 [1st Dept 1991]). Among other things, the plaintiff alleged that her brother had fraudulently induced their elderly mother to convey the properly to him by telling the mother that the deed she signed only permitted him to manage the property while she was out-of-state (see id.). The defendant moved to dismiss, arguing – with his mother’s support – that the plaintiff lacked standing to seek a constructive trust (see id.).
Although the Supreme Court denied the defendant’s motion, the First Department reversed (see id.). The Appellate Division reasoned that the plaintiff was not a party to her mother’s conveyance of the property and could not void it simply because she considered herself to be an heir of her living mother’s estate (see id.). In short, the plaintiff’s self-serving description of herself as a potential heir of her mother’s estate did not cloak her with standing to sue or exercise rights on her mother’s behalf (see id.).
There are several lessons to take away from Sharrow and Schneider, the most obvious of which is for children to respect the wishes of their parents as those wishes relate to the parents’ assets during life. Putting the obvious aside, however, disfavored children and their attorneys should take note of the well-reasoned legal principle that, as “potential heirs” of their parents’ estates, they lack standing to take legal action concerning their parents’ assets. During their lives, the assets belong to the parents and are subject to the parents’ absolute right to dispose of their property as they wish.
Unlawful Marriages and the Right of Election
Under New York law, a decedent is prohibited from disinheriting his or her surviving spouse (see Margaret Valentine Turano, Practice Commentaries: EPTL § 5-1.1-A [1999 ed.]). Consistent with that prohibition, the laws of this state provide that a decedent’s surviving spouse has a personal right of election to take a portion of the decedent’s estate, whether or not the decedent provides for the spouse in his or her last will and testament (see EPTL § 5-1.1-A). Predictably, the right of election has given rise to extensive litigation, as evidenced by Suffolk County Surrogate John M. Czygier, Jr.’s recent decision in Matter of Newman (see Matter of Newman, 883 P 2007/A, NYLJ 1202520804987 [Sur Ct, Suffolk County Nov. 1, 2011]). As discussed below, Newman is noteworthy because it addresses the extent to which a judicial determination that the alleged surviving spouse’s marriage to the decedent was unlawful will affect the spouse’s right to elect against the decedent’s estate.
EPTL § 5-1.1-A provides that the surviving spouse of a decedent who dies on or after September 1, 1992, has a personal right to elect against the decedent’s estate (see EPTL § 5-1.1-A), unless it is established that the marriage upon which the surviving spouse relies was incestuous, bigamous, or a prohibited remarriage under the Domestic Relations Law (see Newman, supra). The financial consequences of a surviving spouse asserting elective share rights can be substantial, as the pecuniary value of the elective share is equal to “the greater of (i) fifty thousand dollars or, if the capital value of the [decedent’s] net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate” (see EPTL § 5-1.1-A).
In Newman, the decedent’s alleged surviving spouse, Kenneth Newman (“Kenneth”), sought to exercise his elective share rights against the decedent’s estate (see Newman, supra). After the decedent’s will was admitted to probate, the fiduciary of her estate commenced a proceeding to determine the validity of Kenneth’s election against the estate (see id.). Kenneth died before the matter was resolved, and the executor of the decedent’s estate ultimately moved for summary judgment concerning Kenneth’s notice of election (see id.).
Surrogate Czygier held that Kenneth’s notice of election was invalid, as his marriage to the decedent was unlawful (see id.). In reaching that conclusion, the Surrogate found that, at the time he allegedly married the decedent, Kenneth had not yet divorced (and, thus, was still married to) his first wife (see id.). Absent evidence that Kenneth and the decedent “remarried” after Kenneth divorced his first wife, the executor of the decedent’s estate presented sufficient evidence to rebut the presumption that Kenneth’s “second marriage [was] valid and that the prior marriage was dissolved by death, divorce, or annulment” (see id.). Accordingly, as Kenneth’s marriage to the decedent was unlawful, his notice of election was void and unenforceable (see id.).
In sum, while a surviving spouse generally has a right to elect against a decedent’s estate, that right is not absolute (see Matter of Berk, 71 AD3d 883 [2d Dep’t 2010]). To the extent that the surviving spouse’s marriage to the decedent is unlawful, the survivor will not receive his or her elective share.
Revoking Marriages in Article 81 Proceedings
As the problem of elder abuse has become increasingly prevalent in recent years, so too has the need to protect elders who suffer abuse, whether physical, mental, or financial, at the hands of the individuals to whom they have entrusted their care and affairs (see Campbell v Thomas, 73 AD3d 103, 104 [2d Dept 2010]). Recent case law demonstrates that elderly individuals can fall prey to their much younger caregivers who secretly marry the elderly in the hopes of benefiting from their estates (see id.; Matter of Berk, 71 AD3d 883, 883-86 [2d Dept 2010]; Matter of Kaminester, 26 Misc3d 227, 235-37 [Sur Ct, New York County 2009]). For family members who are aware of such abuse, one solution may be to commence an Article 81 guardianship proceeding and to seek to have the marriage revoked by a guardianship court (see Mental Hygiene Law 81.29).
Under Mental Hygiene Law 81.29, an Article 81 guardianship court “may modify, amend, or revoke . . . any contract [including one involving a marriage] made while the person was incapacitated” (see Mental Hygiene Law 81.29). In this regard, the Appellate Division, Second Department, has held that a marriage may be revoked when the evidence shows that one of the parties to the marriage “was ‘incapable of understanding the nature, effect, and consequences of the marriage’” at the time that it occurred (Matter of Joseph S., 25 AD3d 804, 806 [2d Dept 2006]). The factors that the guardianship court considers in determining whether to revoke a marriage include, among other things, the differences in the purported spouses’ ages; whether the spouses cohabited; whether there was a change in residency; whether the spouses wore wedding rings; and whether there is any evidence of financial exploitation of the incapacitated spouse (see Matter of I.I.R., 21 Misc.3d 1136[A], at *2 [Sup Ct, Nassau County 2008]).
Matter of Carmen R. is instructive (see 15 Misc3d 1116[A], at *1-6 [Sup Ct, Westchester County 2007]). There, the petitioner, the alleged incapacitated person’s daughter and duly appointed Temporary Personal Needs Guardian, made an application for the annulment of her eighty-nine year-old mother’s marriage to her fifty-seven year-old chauffeur (see id.).
At an evidentiary hearing, Westchester County Supreme Court Justice Peter J. Rosato heard testimony from, among others, the alleged incapacitated person’s physician, which established that she suffered from severe dementia, among other ailments, and could not understand any marriage ceremony; from the alleged incapacitated person, which demonstrated that she knew her alleged spouse, but could not remember his last name or any marriage to him; and from the alleged incapacitated person’s daughter, which suggested that the alleged spouse concealed the “marriage” from her, evidenced the fact that the alleged spouse was her mother’s chauffer, not her friend, and flatly contradicted the alleged spouse’s claim that he had lived with the incapacitated person for more than a decade (see id.). Justice Rosato also heard testimony from the alleged spouse which demonstrated that the first time he publicly disclosed the marriage was on an immigration application to have his daughter admitted to the United States from Ecuador; that he had been collecting thousands of dollars in rent from the tenants of property owned by the alleged incapacitated person; and that he had previously been arrested for violating a temporary restraining order that prohibited him from having contact with the alleged incapacitated person (see id.).
Based upon the testimony and other evidence before the court, Justice Rosato granted the petitioner’s application for an annulment of the marriage between her mother and the chauffer (see id.). In doing so, Justice Rosato explained that “[i]t [was] abundantly clear, on the evidence adduced upon the hearing held herein, that the [alleged incapacitated person] did not possess the requisite mental capacity to marry” (id.). Justice Rosato also found that the marriage was a product of fraud arising from the purported spouse’s desire to gain entry into this country for his daughter who was living in Ecuador until after the marriage (see id.). Accordingly, Justice Rosato granted the petitioner’s application to annul the marriage (see id.).
Of course, an annulment in the context of an Article 81 proceeding is only feasible where the relatives of an allegedly incapacitated person are aware of the marriage prior to the person’s death. Where the marriage is concealed until after the person dies, however, other remedies may exist outside the context of Article 81 (see Jaclene D’Agostino, “Appellate Division Cites Equitable Factors In Denying Entitlement To Elective Share”)
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More Tales from the Crypt: The Right of Sepulcher, Decedent's Intent and Disposition of Human Remains
Two years ago, in “Tales from the Crypt: Disposing of Human Remains in New York”, I wrote that: “[i]n New York, the disposition of remains is presumptively governed by [Public Health Law ] section 4201; and that “[a]bsent a valid written instrument appointing an agent for that purpose, section 4201 sets forth which individuals shall have priority to make decisions concerning the disposition of remains” (see “Tales from the Crypt: Disposing of Human Remains in New York”). While those statements remain true today, a recent decision by Nassau County Supreme Court Justice Joel K. Asarch addresses the extent to which a decedent’s intent governs the disposition of his remains where surviving family members have expressed conflicting views on the issue and the individual who has priority to make the decision seeks to dispose of the decedent’s remains in a manner that is inconsistent with the decedent’s expressed intentions (see Matter of Grace D., 922 NYS2d 914 [Sup Ct, Nassau County 2011]).
Although “the common-law right of sepulcher gives [a decedent’s] next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial” (Melfi v M. Sinai Hosp., 64 AD3d 26, 31 [1st Dept 2009]), Public Health Law section 4201 “sets forth a prioritized list of [individuals] who shall presumptively have the right to direct the disposition of a decedent’s remains” (see Maurer v Thibeault, 20 Misc3d 631, 632 [Sup Ct, Cortland County 2008]; Public Health Law § 4201). At the top of the list is an agent appointed in a written instrument that is duly executed in accordance with section 4201 (see Public Health Law § 4201). Absent such a written instrument, the decedent’s surviving spouse, surviving domestic partner, surviving children who are eighteen years of age or older, and surviving siblings who are eighteen years of age or older, among others, in descending order, shall have priority (see id.). No matter who ultimately has priority, however, the individual charged with making a decision concerning the decedent’s final resting place must do so in a manner that is consistent with “the moral and individual beliefs and wishes of the decedent” (id.[c]).
In Matter of Grace D., the decedent’s surviving sister and niece were at odds as to how to dispose of the decedent’s remains (see Grace D., 922 NYS2d at 915-17). On the one hand, the decedent’s sister sought to have the decedent’s remains cremated and transported to her home in Vermont, where the decedent experienced artistic and musical inspiration during his life (see id.). Although she acknowledged that the decedent never expressed any intention to be cremated, the sister explained that, upon her death, she wished to be cremated and to have the decedent’s ashes combined with her cremains (see id.).
On the other hand, the decedent’s niece expressed her desire that the decedent be buried, as he intended, in the Catholic cemetery burial plot that he had purchased for himself thirty-five years before meeting his maker (see id.). The niece testified that the decedent “was a religious man, who served as the Choir Director at a local church for several decades, and expected that he would be buried in the customary garb of a Knight of the Order of the Holy Sepulchre of which he was a member” (see id.).
Noting that the decedent’s Last Will and Testament did not indicate his desire for the disposition of his remains; that there was no duly appointed agent to decide that issue; and that the decedent was survived by two sisters, including the one who sought to have his remains cremated, Justice Asarch found that the sisters would have statutory priority over all other surviving heirs to determine where the decedent’s final resting place would be (see id.). However, Justice Asarch also explained that since the decedent left a clear indication as to his wishes by purchasing a burial plot and paying for its permanent care, the court was bound to respect the decedent’s intentions (see id.). Justice Asarch, therefore, ordered that the decedent’s remains be buried in his cemetery plot, not cremated, as his sister, but not the decedent, wished (see id.).
In sum, a decedent’s testamentary intent is the paramount concern in cases concerning the disposition of human remains. To the extent that the decedent’s wishes can be ascertained, they must be honored by the decedent’s surviving relatives, most especially those who have priority to decide where the decedent’s final resting place will be.
The Slayer Rule
As articulated by the Court of Appeals in Riggs v Palmer, the so-called “slayer rule” provides that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (Riggs v Palmer, 115 NY 506, 511 [1889]). Although “[t]his maxim is generally applied in cases where one intentionally murders another person or causes the death of another person by some felonious or other intentional or reckless criminal conduct”, its application “is not always straightforward” (Matter of Wright, 859 NYS2d 864, 866 [Sur Ct, Westchester County 2008]).
Nowhere is that more clear than in a case that is developing in Suffolk County. According to published reports, after choking his mother-in-law Dianne Edwards (“Dianne”) to death, Brandon Pallidino was convicted and, ultimately, sentenced to prison for his crime (see Carol MacGowan, “Fight Over Estate Continues After Sentencing”, Newsday, Feb. 3, 2011). Adding insult to injury, however, it appears that Brandon is now seeking to take a substantial portion of Diane’s estate, as a beneficiary of his deceased wife Deanna Palladino’s (“Deanna”) estate (see id.).
Apparently, Dianne died, testate, bequeathing her entire estate to her daughter, Deanna (see id.). Although Deanna survived Dianne, she died of an accidental drug overdose in February, 2010, leaving no will (see id.). Under normal circumstances, Brandon, as Deanna’s surviving spouse (with no issue), would inherit Deanna’s entire estate, including any bequests that she received from Dianne (see EPTL 4-1.1[a][2]).
Of course, these are not normal circumstances. Since Brandon killed Dianne, the critical question for the Surrogate’s Court may be whether New York’s slayer rule precludes Brandon from inheriting Dianne’s property, not as a direct beneficiary of Dianne’s estate, but, indirectly, through Deanna’s estate. While standards of common sense and decency would seem to render this an easy question to answer in the negative, the issue is not clear-cut, as the slayer rule may not apply to Brandon’s situation. There appears to be support for the proposition that the slayer rule only applies when there is “[a] direct causal relationship between the unworthy act (the killing of the decedent) and the potential for inheritance” (Richard Lewis Brown, “Undeserving Heirs? – The Case of the “Terminated” Parent”, 40 U. Rich. L. Rev. 547, 560 [2006]; see also Matter of Parente, NYLJ, 6/10/2010, at 44, col. 3 [Sur. Ct., Nassau County] [finding Riggs inapplicable, as the victims’ killing did not inure “to the wrongdoer’s benefit as a beneficiary of” the victims’ estates]).
Thus, Riggs may not preclude Brandon from inheriting, indirectly, what was once Dianne’s property, as there is no direct causal link between Dianne’s death and his inheriting from Deanna’s estate. Although the slayer rule would certainly disqualify Brandon from being a beneficiary of Diane’s estate, Brandon is not due to inherit any of Diane’s property in that capacity, but rather, indirectly, as the sole intestate distributee of Deanna, her post-deceased daughter.
However, a far more just result would seem to be one that prevents Brandon from receiving any of Dianne’s property, even indirectly as a beneficiary of Deanna’s estate. Legislative action may be required to bring about such a result.
Based upon the reports published in newspapers over the past several weeks, it appears that this case is on course to be litigated in the Surrogate’s Court. While reasonable minds can disagree as to what is just, the matter is certain to raise interesting questions not often dealt with in the context of a Surrogate’s Court proceeding, leaving the parties sharply divided as to the proper result.
Triggering In Terrorem Clauses With Out-Of-State Will And Trust Contests
In terrorem provisions, which are more commonly known as “no contest” clauses, generally state that beneficiaries forfeit their interests in estates and trusts by contesting the validity of the governing instruments (see Matter of Kalikow, 23 Misc3d 1107[A], at *2 [Sur Ct, Nassau County 2009] [discussing in terrorem clauses]). While strictly construed, such clauses are enforceable in New York (Matter of Ellis, 252 AD2d 118, 127-28 [2d Dept 1998]). They serve several important purposes, such as preventing challenges to wills which might result in trials, jeopardize the testator or grantor’s testamentary or inter vivos plans, or harass other beneficiaries (Matter of Singer, 17 Misc3d 365, 370 [Sur Ct, Kings County], aff’d, 52 AD3d 612 [2d Dept 2008], leave granted, 11 NY3d 716 [2009]; Tumminello v Bolten, 59 AD3d 727, 728 [2d Dept 2009]).
In Shamash v Stark, Surrogate Kristin Booth Glen of the Surrogate’s Court, New York County, recently addressed an issue of first impression in New York (Shamash v Stark, NYLJ, 6/16/2009, at 38, col. 2 [Sur Ct, New York County]). The issue was whether will and trust contests in Florida, where no contest clauses are void as against public policy (F.S.A. § 732.517), triggered an in terrorem clause contained in a New York trust instrument (Shamash, supra).[1]
In Shamash, the decedent’s revocable trust, which was governed by New York law, provided that any beneficiary who contested his will or trust would forfeit his or her interest in the trust (id.). After contesting the will and trust in Florida, the petitioner commenced an accounting and removal proceeding with respect to the trust in the New York Surrogate’s Court (id.). The respondents moved to dismiss the Surrogate’s Court proceeding, arguing that the petitioner was not a beneficiary of the trust estate, and therefore lacked standing to maintain the proceeding, because he had triggered the trust’s in terrorem clause by contesting the will and trust in Florida (id.). In opposition, the petitioner asserted, among other things, that he did not trigger the in terrorem clause because no contest clauses are void under Florida law (id.).
The Surrogate’s Court dismissed the petition, holding that the petitioner lacked standing to seek an accounting or removal with respect to the trust (id.). The court reasoned that: (1) the trust is governed by New York law; (2) in terrorem clauses are enforceable in New York; and (3) the petitioner triggered the trust’s in terrorem clause by contesting the decedent’s will and trust in Florida (id.). The fact that no contest clauses are void as against public policy in Florida was immaterial (id.).
The lesson to take away from Shamash is that the contest of a will or trust in another state, where in terrorem clauses are not enforceable, may trigger such a clause in a New York instrument and result in the forfeiture of a beneficiary’s interest in the subject estate or trust.
Tales from the Crypt: Disposing of Human Remains in New York
Trusts and estates litigators often see families at their very worst, fighting over everything from money to decision-making authority, and virtually anything else imaginable. So, it should come as no surprise that there have been disputes over the disposition of human remains, which necessitated legislative action to resolve these conflicts.
New York Public Health Law section 4201 “sets forth a prioritized list of [individuals] who shall presumptively have the right to direct the disposition of a decedent’s remains” (Maurer v Thibeault, 20 Misc 3d 631, 632 [Sup Ct, Cortland County 2008]). An agent appointed in a written instrument executed in accordance with section 4201 shall have first priority (Public Health Law § 4201 [requiring, among other things, that the principal and agent sign the instrument]). Absent a written instrument, the following individuals shall have priority to control the disposition of a decedent’s remains, in descending order:
(1) “the decedent’s surviving spouse;”
(2) “the decedent’s surviving domestic partner;”
(3) “any of the decedent’s surviving children eighteen years of age or older;”
(4) “either of the decedent’s surviving parents;”
(5) “any of the decedent’s surviving siblings eighteen years of age or older;”
(6) “a guardian appointed pursuant to article seventeen or seventeen-A of the surrogate’s court procedure act or article eighty-one of the mental hygiene law;”
(7) “any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the estates, powers and trusts law, with the person closest in relationship having the highest priority;”
(8) “a duly appointed fiduciary of the estate of the decedent;”
(9) “a close friend or relative who is reasonably familiar with the decedent’s wishes, including the decedent’s religious or moral beliefs, when no one either on this list is reasonable available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section [stating that he or she has no knowledge that the decedent executed a written instrument containing directions for the disposition of his or her remains]; or”
(10) “a chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the surrogate’s court procedure act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section” (id.).
The person with priority must faithfully carry out the decedent’s directions to the extent permitted by the law and the circumstances (id.).
In Maurer v Thibeault, the petitioner did something that no parent should have to do, she requested permission to determine the disposition of her deceased daughter’s remains after the daughter died under suspicious circumstances (20 Misc3d at 632-37). Although the respondent, the decedent’s husband, asserted that he should decide how his wife was laid to rest, the petitioner argued that the respondent should not be given priority because he was estranged from the decedent and, therefore, did not qualify as her “surviving spouse” under the statute (id.).
Noting that the decedent never executed a written instrument in accordance with section 4201, the court then addressed whether the respondent had priority over the petitioner as the decedent’s surviving spouse (id.). The court concluded that he did not (id.). In doing so, the court relied on evidence that established the decedent’s hatred, loathing and fear for the respondent immediately before her death (id.). The court also referenced the police report she filed against the respondent just one month prior to her death, accusing him of attacking and strangling her “to the point of unconsciousness” (id.).
Based upon those facts and the line of cases precluding a separated or estranged person from qualifying as a “surviving spouse,” the court rejected the respondent’s claim of priority (id.). The court also granted the petitioner’s request for permission to control the disposition of the decedent’s remains (id.). As the decedent’s surviving parent, the petitioner had priority to do so, since there was no written instrument, the respondent did not qualify as a surviving spouse, and the decedent had no domestic partner or child age 18 or older (id.).
In New York, the disposition of remains is presumptively governed by section 4201. Absent a valid written instrument appointing an agent for that purpose, section 4201 sets forth which individuals shall have priority to make decisions concerning the disposition of remains.
Unsealing Adoption Records
Adoption records are generally confidential in New York, but at times they are unsealed for medical purposes. While it is rare for these records to be unsealed for other reasons, courts will at times determine that it is proper to do so in a particular case.
Under New York law, adoption records are sealed “to protect and insure [the] confidentiality [that] is ‘vital to the adoption process’” (Matter of Victor M.I. I., 23 Misc3d 1103[A], at *1 [Sur Ct Nassau County 2009]; DRL § 114[2]). The confidentiality serves several important purposes (Matter of Linda F. M., 52 NY2d 236, 239 [1981]). First, it “shields the child from possibly disturbing facts surrounding his or her birth and parentage” (id.). Second, “it permits the adoptive parents to develop a close relationship with the child free from interference or distraction” (id.). Third, “it provides the natural parents with an anonymity that they may consider vital” (id.).
Notwithstanding the preference for confidentiality, there are circumstances in which it may be appropriate to unseal adoption records (DRL § 114[2]). Indeed, “adoption records may be unsealed upon a showing of good cause” and “due notice to the adoptive parents” (Victor M.I. I., 23 Misc3d 1103[A], at *1 [internal quotation marks omitted]). “Good cause” typically arises for medical reasons, such as a serious health issue (id.). Further, while adoption records may be unsealed for non-medical reasons, exceptions to the rule for non-medical reasons are “rare” (Matter of Lewis, NYLJ, 4/20/2007, at 32 [Sur Ct Kings County]).
Matter of Victor M.I. I. involves one of those rare exceptions (23 Misc3d 1103[A], at *1-3 [Sur Ct, Nassau County 2009]). There, the petitioner sought to unseal adoption records for the purpose of obtaining certified copies of his pre-adoption birth certificate (id. at *1). The petitioner did so “in order to establish his Hungarian lineage [and] become a citizen of Hungary, based upon the status of his biological mother [as] a Hungarian citizen” (id.). In support of his application, the petitioner asserted that he “would benefit from Hungarian citizenship because he frequently travels to Hungary for business and personal reasons and resides there on a part-time basis” (id.). He also submitted an affidavit from his then-deceased biological mother, which evidenced her consent to the requested relief (id.).
Nassau County Surrogate John B. Riordan granted the petitioner’s application, noting that the policies favoring confidentiality did not weigh against the petitioner’s prayer to obtain copies of his pre-adoption birth certificate (id. at *2). As Surrogate Riordan explained, the petitioner’s adoptive parents were deceased, his biological mother had consented to unsealing the records, and the petitioner could not obtain his original birth certificate from any other source (id.). Those factors, when taken in conjunction with the “substantive benefit” the petitioner would enjoy if afforded the opportunity to secure copies of his original birth certificate, constituted “good cause” (id.). Accordingly, the court granted the application to unseal the adoption records to permit the petitioner to obtain copies of his pre-adoption birth certificate (id. at *2-3).
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Although the confidentiality of adoption records is favored, there are circumstances in which such documents may be unsealed. Those circumstances generally stem from health-related reasons, but may occasionally arise for non-medical reasons as well. The Victor M.I. I. case makes that much clear.
Discovery in Probate Contests
Discovery in a contested probate proceeding is generally governed by what Surrogate’s Court practitioners call the “three/two” rule (22 NYCRR 207.27). This rule limits discovery to the “three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent’s death, whichever is the shorter period” (id.). It is a “pragmatic rule" intended to prevent the abuses associated with a “runaway inquisition” or “wild goose chase” (Estate of Das, NYLJ, 5/1/2009, at 31 [Sur Ct Nassau County]).
Notwithstanding that general rule, however, the time period for discovery may be extended by the Surrogate’s Court when “special circumstances” exist, such as when “a scheme of fraud or a continuing course of conduct of undue influence” is alleged (id.). For example, in Matter of Kaufman, the objectants sought discovery with respect to the entire period of cohabitation between the proponent of the decedent’s will and the decedent, which lasted from September 1948 until the decedent’s death in April 1959 (11 AD2d 759, 759-60 [1st Dept 1960]). The objectants argued that the departure from the three/two rule was warranted because the proponent’s long relationship with the decedent gave rise to testamentary capacity and undue influence concerns (id.). Although the Surrogate’s Court denied the objectants’ motion, the Appellate Division reversed, reasoning that a full examination of the decedent’s relationship with the proponent was warranted (id.).
However, conclusory allegations of “special circumstances” will not suffice. In Estate of Das, the Surrogate’s Court recently denied the objectant’s motion to depart from the three/two rule (Das, supra). There, the decedent died in July 2002, but the petitioner, the decedent’s son, did not offer the decedent’s will for probate until September 2006 (id.). The petitioner attempted to explain the delay by filing an affidavit of lateness stating that he had trouble locating the deed to real property the decedent owned in India (id.). Nevertheless, the objectant, another one of the decedent’s sons, filed objections to probate, alleging that the will was the product of fraud, duress, and undue influence, among other grounds (id.).
The objectant moved to expand the three/two rule for discovery, while the petitioner cross-moved for an order appointing him to act as Executor of the decedent’s estate (id.). In support of his motion, the objectant argued that “special circumstances” existed, justifying the requested departure from the three/two rule (id.). Specifically, the objectant asserted that: (1) “the petitioner and his wife sold property owned by the decedent during the decedent’s lifetime;” (2) “there was a delay in offering the will for probate;” (3) “the petitioner exercised a health care proxy ‘resulting in the decedent’s death’;” (4) “the petitioner failed to investigate injuries sustained by the decedent as the result of a fall in the hospital and did not bring a wrongful death action;” (5) “the purported will reflects a ‘fatal disregard for forced heirship laws of India’;” (6) “the proposed executor[] and his counsel ‘displayed conduct during the probate proceedings including but not limited to initial non-responsiveness followed by less than adequate disclosure’;” and (7) the “fact that [the] proposed executor’s wife has and continues to wield undue influence over the estate is further highlighted by her recent communiqué with an Indian attorney on the forced heirship laws of India” (id.).
Upon considering the objectant’s contentions, the court concluded that there were no special circumstances to justify departing from the three/two rule (id.). The court reasoned that there were “no allegations of a ‘scheme to defraud’ or a ‘continuing course of conduct of undue influence” (id.). As a result, the court denied the objectant’s motion to expand the three/two rule for discovery (id.).
While the three/two rule governs discovery in probate contests, it should not serve as an absolute bar to obtaining discovery of activities that occur outside of the permissible period when special circumstances exist.
A Matter of Faith: Conditioning Bequests on Religious Observance and Marriage
In Matter of Feinberg, an Illinois appellate court recently addressed the enforceability of a will clause that provided that the testator’s descendants could only inherit from his estate if they married within the Jewish faith (or their spouses converted to Judaism within one year of the marriage) (383 Ill App3d 992, 992 [Ill App Ct 2008], app. all’d, 229 Ill2d 667 [Ill Sup Ct 2008]). The court found that it was not enforceable in that it violated public policy (id.). In doing so, the court analogized the Feinberg clause to will provisions that imposed similar faith-based marriage requirements on beneficiaries, and concluded that the clause impermissibly restrained marriage and encouraged divorce (id. at 994-95).
Would such a clause likely be enforceable in New York? The answer may be “yes.” Although no New York court has addressed the issue recently, several older decisions opine that such a clause is enforceable. Those decisions are, of course, subject to the general rule that the clause not encourage divorce or discourage marriage (cf. Robinson v Martin, 200 NY 159, 167 [1910] [discussing a bequest as a restraint on marriage]).
Matter of Silverstein’s Will is illustrative (155 NYS2d 598 [Sur Ct Queens County 1956]). There, the testator’s will provided for the equal distribution of his personal property to his grandchildren, but only if they married Jewish spouses (id. at 599-600). The Surrogate’s Court held the clause to be enforceable, explaining that conditions “not to marry a person of a particular faith . . . are not [per se] invalid” (id.). As a result, the court also concluded that one of the testator’s grandchildren was not entitled to a share of the testator’s personal property, since he married outside of the Jewish faith (id.).
The Appellate Division, Fourth Department, reached a similar conclusion in Matter of Kempf’s Will (252 AD 28, 29-34 [4th Dept 1937]). In that case, the testator’s will bequeathed $5,000 to his grandchildren, provided that they were raised as Roman Catholics (id.). Although the Surrogate’s Court, Oneida County, concluded that the subject provision violated public policy, the Appellate Division reversed, noting that “the testator had the right to burden his gift with conditions” (id.). Accordingly, the Appellate Division explained that the grandchild who was not raised a Roman Catholic did not have a right to the $5,000 bequest (id.).
Times have changed since the Silverstein and Kempf decisions were rendered. Could a New York court find that such a will provision violates public policy and refuse to enforce it? Possibly. Despite the authority to the contrary, would a New York court conclude that such a clause is an unreasonable restraint on marriage (Feinberg, 383 Ill App3d at 997)? Perhaps. Might a court analogize such a clause to restrictive covenants concerning religion and real property, which have been held to violate the Federal Constitution and public policy alike (5 Rathkopf’s The Law of Zoning & Planning § 82:8 [4th ed. 2009])? Maybe. It would be interesting to see whether a New York court concludes that such a will provision is enforceable in the twenty-first century.
Is Justice Delayed Justice Denied?
Recent developments in the Martin Tankleff murder case have captivated court observers in New York and attracted the attention of national news media outlets. For the most part, the observers have focused their attention on issues of criminal law, like newly-discovered evidence and the reliability of allegedly false confessions. Yet, the case also has potential trusts and estates-related consequences.
This much we know: Mr. Tankleff’s parents were killed on September 7, 1988 (see People v Tankleff, 49 A.D.3d 160, 162-64 [2d Dep’t 2007]). After an investigation, the police arrested Mr. Tankleff for murdering his parents, prosecutors tried him for the murders, and a Suffolk County jury convicted him of the offenses (id.). In the days, months, and years that followed, Mr. Tankleff and his legal team launched an exhaustive campaign to overturn his convictions on the basis of newly-discovered evidence, which Mr. Tankleff asserted established his innocence (id.). The Appellate Division, Second Department, issued an Order vacating Mr. Tankleff’s judgments of conviction in December 2007, id. at 183, and prosecutors elected against retrying Mr. Tankleff in June 2008 (see Luis Perez, “AG won’t retry Tankleff – or any other suspects,” Newsday, June 30, 2008).
Presumably, Mr. Tankleff did not inherit from his father’s estate (see Brian Harmon et al., “Martin Tankleff’s half-sister: he did it,” N.Y. Daily News, Jan. 4, 2008). Indeed, although court records pertaining to the settlement of that estate were sealed, In re Tankleff, NYLJ, Nov. 7, 1991, at 24, col. 5 (Sur. Ct., Suffolk County), reports indicate that Mr. Tankleff’s half-sister, Shari Mistretta, received the assets of the estate, which have been valued as high as $3,500,000 by the media (see Harmon, supra). This is because the “slayer rule,” which the Court of Appeals first applied more than a century ago in Riggs v Palmer, 70 Sickels 506 (1889), precludes a decedent’s intentional killer from profiting from the decedent’s estate (see In re Bach’s Estate, 53 AD2d 612, 612 [2d Dep’t 1976]). Further, an amendment to the Estates, Powers, and Trusts Law, which, if enacted, would codify the “slayer rule,” is currently pending before the New York State Senate’s Judiciary Committee.
Despite the fact that Mr. Tankleff’s convictions were overturned and prosecutors decided not to retry him, Mr. Tankleff may not be able to inherit from his father’s estate for a variety of reasons. First, although prosecutors ultimately decided not to retry Mr. Tankleff because they were unsure whether they could prove his guilt beyond a reasonable doubt in a criminal proceeding, the question remains whether Ms. Mistretta would be able to oppose Mr. Tankleff’s petition to recover shares of the father’s estate by establishing that Mr. Tankleff killed his parents under the less exacting standard of proof applicable in Surrogate’s Court proceedings. Second, there may not be any estate assets left, now that approximately two decades have passed since Mr. Tankleff’s father was killed and his estate was distributed to Ms. Mistretta. See Harmon, supra. Third, the Surrogate’s Court proceedings pertaining to the estate may have been terminated by stipulation of settlement, which may be difficult, though possible, to vacate (see id.; see also Tankleff, supra).
Absent additional information, it is impossible to say whether or not Mr. Tankleff is entitled to inherit from his father’s estate in light of the slayer rule. What we can, however, take away from this is the number of legal and practical considerations which might inspire or discourage Mr. Tankleff from pursuing estate-related claims or even an accounting against Ms. Mistretta.
