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“Undue Influence” and “Fraud” Criteria Explained Re: Objections to Probate of a Will

The Second Department, in affirming Surrogate’s Court’s dismissal of objections to the probate of a will, explained the criteria for a demonstration of “undue influence” and “fraud:”

“An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist'” … . “An objectant seeking to establish that a will is the product of fraud has the burden of proving by clear and convincing evidence that the proponent of the will knowingly made false statements to the testator to induce him or her to make a will which disposed of property in a manner different from that in which the testator would otherwise have disposed of the property” … . The petitioners demonstrated their prima facie entitlement to judgment as a matter of law by showing, among other things, that the will had been duly executed, that the decedent possessed testamentary capacity, and that no undue influence or fraud had been exercised upon the decedent … . In opposition, the objectants failed to submit any evidence, beyond conclusory allegations and speculation, that the petitioners actually exercised undue influence over the decedent or that any fraudulent statements were made to the decedent, that the proponents of the made statements they knew to be false, or that any such statements caused the decedent to change his will… . Matter of Mele, 2014 NY Slip Op 00512, 2nd Dept 1-29-14

 

Question of Fact Whether Wife of Decedent Had Abandoned Decedent

The Third Department determined that a question of fact had been raised about whether decedent’s wife had abandoned decedent such that she should be disqualified as surviving spouse:

A person may be disqualified from inheriting from his or her deceased spouse where the surviving “spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL 5-1.2 [a] [5]).  The party asserting abandonment bears the burden of establishing that the surviving spouse departed from the marital abode and that such departure was both “unjustified and without the consent of the other spouse” ,,, .  In determining whether one spouse has abandoned the other, a court employs the same standards as are applied in the context of an action for a separation or divorce based on abandonment … . Matter of Yengle…, 516840, 3rd Dept 1-9-14

 

Decedent’s Divorce Did Not Invalidate Provisions of Her 1996 Will Which Made Her Former Father-In-Law the Alternate Executor and Alternate Beneficiary/Proof Was Insufficient to Demonstrate the 1996 Will Had Been Revoked by a Lost Will

In a full-fledged opinion by Justice Scudder, over a lengthy dissent by Justice Peradotto, the Fourth Department affirmed Surrogate’s Court’s determination that a 1996 will must be admitted to probate and any provisions of the will not affected by decedent’s divorce must be honored.  The petitioner was the (divorced) decedent’s former father-in-law who was named alternate executor and alternate beneficiary of the 1996 will.  Under New York law, decedent’s divorce revoked the testamentary distribution to her ex-husband and revoked her ex-husband’s appointment as executor, but the provisions of the will relating to decedent’s former father-in-law remained viable. The objectants argued that the 1996 will had been revoked by a subsequent will which was lost. The Fourth Department found that there was insufficient evidence presented at the hearing to show that the lost will was duly executed and attested and, therefore, there was insufficient evidence the prior will had been revoked:

Pursuant to New York law, the testamentary distribution to the ex-husband and his appointment as executor are revoked, but all other provisions of the will remain valid (see EPTL 5-1.4 [a], [b]…). * * *

We are constrained to conclude that the evidence at the hearing is insufficient to establish that the Lost Will was duly executed and attested … .  With respect to New York’s EPTL 3-2.1, there was no testimony that the document was signed or acknowledged by decedent in the presence of the witnesses. Furthermore, there was no evidence that decedent declared to the witnesses that the document was her will.  Finally, although the neighbor testified that decedent’s signature appeared on the document, there was no evidence that the signature was at the end of the document. Matter of Lewis…, 1170, 4th Dept 1-3-14

 

Relatives of Persons Buried in Defendant Cemetery Could Not Sue As Beneficiaries of the Charitable Trust Set Up to Ensure Perpetual Care of the Cemetery Plots

In a full-fledged opinion by Justice Saxe, the First Department determined that the relatives of persons buried in defendant cemetery did not have standing to sue as beneficiaries of a charitable trust which was supposed to ensure perpetual care of the cemetery plots.  [However, one of the plaintiffs, who himself was a donor to the charitable trust, did have standing to sue:

EPTL article 1, which governs charitable trusts, specifically includes trusts for the perpetual care of graves: “Dispositions of property in trust for the purpose of the perpetual care … of cemeteries or private burial lots in cemeteries … shall be deemed to be for charitable and benevolent purposes” (EPTL 8-1.5). The statute directs the State Attorney General to protect and enforce the interests and rights of the beneficiaries: “The attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts” (EPTL § 8-1.1[f] [emphasis added]). “The obvious purpose of this provision was to provide a mechanism for enforcement of trusts whose beneficiaries were unascertainable” … . * * *

… [A]llowing relatives to bring lawsuits as to each lot, plot or grave could create endless litigation, substantially depleting the trust assets. Enforcement of the subject charitable trusts is therefore best left to the Attorney General, so as not to expose the trust funds to money-draining multiple lawsuits, and to avoid setting a precedent of allowing a broad, vague beneficiary base to commence multiple actions against a charitable trust. Lucker v Bayside Cemetary, 2013 NY Slip Op 08835, 1st Dept 12-31-13

 

 

No Rigid Formula for a Constructive Trust

The Second Department determined that a petition seeking to impose a constructive trust on an IRA properly survived a motion for summary judgment. The petitioners are the children of James (now deceased) and the former beneficiaries of James’ Oppenheiner Funds IRA.  The respondent, Holbrook, is the executor of the estate of James’ second wife (the decedent) and the current beneficiary of the Oppenheimer IRA.  The petitioners alleged that, in return for James’ naming the decedent the beneficiary of the Oppenheimer IRA, the decedent promised to sign a consent form making petitioners the beneficiaries of another IRA.  The petitioners alleged that, when presented with the consent form, the decedent refused to sign it:

…[T]he petition seeking to impose a constructive trust adequately states a cause of action to impose a constructive trust on the proceeds of the Oppenheimer Funds IRA. “The usual elements of a constructive trust are (1) a confidential or fiduciary relation[ship], (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment'” … . However, these factors “are not an unyielding formula which limits a court’s freedom to fashion this equitable remedy’ and the requirements are not to be rigidly applied” … . Thus, a constructive trust “will be erected whenever necessary to satisfy the demands of justice” … .

Here, the marital relationship between James and the decedent provides the necessary confidential relationship …. . The petitioners have sufficiently alleged a promise by the decedent, a change in beneficiary of the Oppenheimer Funds IRA to the decedent in reliance upon that promise, and the decedent’s, and then Holbrook’s, unjust enrichment therefrom. Contrary to Holbrook’s contention, the petitioners possessed a sufficient interest as the previously designated beneficiaries of the Oppenheimer Funds IRA to seek to impose a constructive trust on the proceeds … . Matter of Harold, 2013 NYSlip Op 08629, 2nd Dept 12-26-13

 

Cy Pres Doctrine Properly Applied to Distribute Gifts to the Hospital Which Had Taken Over the Duties of the Named Hospital

The Third Department determined Surrogate’s Court had properly exercised its cy pres power by distributing decedents’ charitable gifts to a hospital (Ellis Hospital) which had taken over the duties of the named hospital (St. Clare’s Hospital):

The relevant gifts were all undisputedly charitable in nature and, for cy pres relief, it was further necessary that the instruments establishing the gifts revealed a general charitable intent and that circumstances had changed rendering impracticable or impossible strict compliance with the terms of the gift instruments … .  * * * Here, the gift instruments, in which the donors also made various other charitable dispositions, revealed a general charitable intent.  With regard to the gifts in question, the intent was to benefit a hospital.  At the time the pertinent gift instruments were executed, St. Clare’s Hospital operated as a hospital and gifts to the Foundation went exclusively to St. Clare’s Hospital.  The stipulated facts reveal that the Foundation has stopped providing any charitable grants.  Its previous sole beneficiary, St. Clare’s Hospital, ceased operating as a hospital, modified its corporate name and changed its corporate function to promoting health and well-being.  Ellis Hospital assumed all responsibility for the hospital and related healthcare services previously provided by St. Clare’s Hospital. Matter of Lally, 516107, 3rd Dept 12-12-13

 

Family Members Failed to Raise a Question of Fact About Whether Care-Provider Exercised Undue Influence Over Decedent

The Third Department determined Surrogate’s Court properly granted summary judgment dismissing the objections and admitting the will to probate.  The respondents failed to raise a question of fact about whether the decedent’s care-provider had exercised undue influence over the decedent.  The care-provider, by the terms of the will, was allowed to live in decedent’s home rent-free for a designated period after decedent’s death.  The rest of decedent’s estate went to organizations decedent was affiliated with, nothing was allotted to respondent family members:

To establish undue influence, respondents were required to demonstrate that decedent “was actually constrained to act against [her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” … .  The influence asserted must rise to the level of “a moral coercion” …, and “[m]ere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact” … .

Here, even assuming that respondents’ proof was sufficient to establish that [the care-provider] had motive and opportunity to influence decedent’s testamentary dispositions, respondents failed to demonstrate that House actually exercised undue influence with respect to the distribution of decedent’s assets.  By all accounts, decedent was a very intelligent, private and strongwilled woman who “ran her life the way she wanted to run it.” Matter of Stafford…, 516429, 3rd Dept 11-27-13

 

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Surrogate’s Court Has Jurisdiction to Determine the Legal Fees Owed to Out-Of-State Counsel for Services to the Estate

In a full-fledged opinion by Justice Austin, the Second Department determined Surrogate’s Court erred when it held that Surrogate’s Court did not have jurisdiction to determine the legal fees due out-of-state counsel and Surrogate’s Court further erred when it ordered that the fees already paid to out-of-state counsel be returned.  The out-of-state firm (Choate Hall) represented the executor who, at the time the firm was hired, lived in Massachusetts (where the firm is located).  The opinion includes a detailed discussion of the jurisdiction of Surrogate’s Court, as well as the relevant statutory and case law (not summarized here):

…[W]e find that the Surrogate’s Court erred in concluding that it lacked subject matter jurisdiction to fix and determine the compensation owed to Choate Hall for services rendered to the estate. Further, the court should have made a determination as to the fair value of Choate Hall’s services, rather than direct that the entire fee be returned. Thereafter, the court should have directed only a refund of such fees paid to Choate Hall that it considered to have been paid in excess of what it determined to be the fair value of Choate Hall’s services to the estate pursuant to SCPA 2110.  Matter of Askin, 2013 NY Slip Op 07963, 2nd Dept 11-27-13

 

Invocation of Fifth Amendment Privilege Against Self-Incrimination by Both Attesting Witnesses Did Not Require Dismissal of Petition to Admit Will to Probate

The Third Department determined that Surrogate’s Court properly denied the motion to dismiss the petition.  Dismissal was sought because both attesting witnesses invoked their Fifth Amendment right against self-incrimination:

To establish that the will was duly executed, petitioner was required to produce the attesting witnesses for examination unless the law permitted the court to dispense with their testimony (see SCPA 1404 [1]).  The applicable statutes do not address the invocation of the privilege against self-incrimination by attesting witnesses, but this Court has found that such an invocation is akin to a failure to recall the events surrounding a will’s execution and, thus, that a will may be admitted to probate pursuant to SCPA 1405 (3) when one witness invokes the privilege, based on the testimony of the other witness or witnesses and sufficient other proof … .

Respondents contend that, as both attesting witnesses invoked the privilege here, the requirement in SCPA 1405 (3) for the testimony of “at least [one] other attesting witness” was not satisfied.   However, the Court of Appeals has held that SCPA 1405 (3) was not intended to “revolutionize[] prior practice” by requiring at least one attesting witness to testify in favor of a will … .  Instead, in holding that a will may be admitted to probate under SCPA 1405 (3) when no attesting witness recalls its execution, the Court found that – consistent with prior law – the statute requires attesting witnesses to be “examined, and all relevant testimony elicited” … but does not impose requirements upon the substance of their testimony.  * * * The issue thus distills to whether there was sufficient other evidence to establish a prima facie case of due execution, and we find that there was. Matter of Estate of Buchting…, 516257, 3rd Dept 11-21-13

 

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German Museum Proved It Had Superior Title to Ancient Assyrian Gold Tablet in Decedent’s Estate/Doctrine of Laches Did Not Apply

In an estate proceeding, the Court of Appeals determined the doctrine of laches did not apply and the German Museum was entitled to the return of the Assyrian gold tablet, which was in decedent’s estate but had been missing from the museum since World War II:

We agree with the Appellate Division that the Estate failed to establish the affirmative defense of laches, which requires a showing “that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state” …. .  While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in possession of the tablet … .  As we observed …in a related discussion of the defense of statute of limitations, “[t]o place a burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would . . . encourage illicit trafficking in stolen art” … .

Additionally, the Estate failed to demonstrate “the essential element of laches, namely prejudice” … .  While the Estate argued that it had suffered prejudice due to the Museum’s inaction, there is evidence that at least one family member (decedent’s son) was aware that the tablet belonged to the Museum.  And, although the decedent’s testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity. Matter of Flamenbaum, 178, CtApp 11-14-13

 

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