Opinion
2019-2380/A & C
03-02-2021
In the MATTER OF the ESTATE OF Henry Michael PANEK, Deceased.
LAW OFFICE OF RALPH C. LORIGO, Attorneys for Karen Tangelder, Jon F. Minear, Esq. of Counsel. HOGAN WILLIG, Attorneys for Lori Evens and Joanne Hortman, Stephen R. Silverstein, Esq. of Counsel. THOMAS F. HEWNER, ESQ., Appearing as Special Erie County Public Administrator.
LAW OFFICE OF RALPH C. LORIGO, Attorneys for Karen Tangelder, Jon F. Minear, Esq. of Counsel.
HOGAN WILLIG, Attorneys for Lori Evens and Joanne Hortman, Stephen R. Silverstein, Esq. of Counsel.
THOMAS F. HEWNER, ESQ., Appearing as Special Erie County Public Administrator.
Acea M. Mosey, S.
Henry Panek [hereinafter, decedent] died on May 28, 2019 at the age of 91. His wife Margaret A. Panek had predeceased him, and he was survived by their three (3) children: Karen Tangelder [hereinafter, Karen], Lori Evens [hereinafter, Lori], and Joanne Hortman [hereinafter, Joanne].
On March 2, 2011, decedent executed a Will leaving all of his property to Karen and naming Karen as executrix of the estate. Lori and Joanne were expressly disinherited under the 2011 Will. On April 3, 2015, decedent executed another Will in which his estate was divided equally among all three of his children. The 2015 Will nominated Lori as executrix.
Decedent had executed a Will in 2003 which also disinherited Lori and Joanne.
On June 28, 2019, Karen filed a petition for probate of the 2011 Will, and on July 2, 2019, Lori filed a petition to probate the 2015 Will. On the citation return date for each matter on August 21, 2019, Karen's petition to admit the 2011 Will was deferred until issues concerning the 2015 Will had been resolved. Objections to the 2015 Will were then filed by Karen, who contends that the Will was not properly executed, that decedent was not competent to make a Will due to dementia, and that the Will was the product of fraud and undue influence.
Pending now before me is a motion by Karen seeking summary judgment dismissing Lori's probate petition and finding the 2015 Will is invalid. Karen also asks that this Court grant her pending petition to probate the 2011 Will and appoint her fiduciary of decedent's estate. Lori and Joanne oppose Karen's motion.
Given the contested nature of decedent's estate, this Court appointed Thomas F. Hewner, Esq. as Special Public Administrator and as temporary administrator of the estate. Hewner has taken no position on the pending summary judgment motion.
The motion having been finally submitted, I now find and decide as follows.
(A)
Lori's papers show that, in 2003, she and Joanne brought a Mental Hygiene Law [MHL] article 81 guardianship proceeding in Erie County Supreme Court [Glownia, J.] with respect to decedent's wife, Margaret. Legal Services for the Elderly was appointed by that Court as Margaret's property needs guardian, and the guardianship continued until Margaret's death.
Lori contends that, "[t]o retaliate against" both her and her sister Joanne, decedent executed a 2003 Will in which he excluded them both from any share in his estate. Decedent's 2011 Will likewise excludes both Lori and Joanne.
Karen, a nurse with over 30 years professional experience in her field, had acted as decedent's caretaker for many years, performing tasks such as driving him to doctors’ appointments and giving him his medications. Although decedent continued to live in his own home by himself, Karen visited him daily to give him his medications and to ensure he was eating properly.
Karen had her son move into her father's home on March 1, 2015, to look after him more directly.
In 2014 decedent was diagnosed with dementia, and, in early 2015, there were at least two incidents where decedent became significantly disoriented and confused. For example, on January 29, 2015, he became disoriented while driving and was brought home by Town of West Seneca police officers. On March 13, 2015, he was again taken home by the West Seneca police when he was found wandering on a public roadway.
On March 29, 2015, Lori, an airline flight attendant who lived in Las Vegas, Nevada, flew to Erie County, New York, removed decedent from his West Seneca, New York, home, and took him back that same day to Las Vegas. She left a note for Karen saying "I have Dad".
Decedent's medications were not taken to Las Vegas by Lori because they were all in Karen's possession.
Once in Las Vegas, and on March 30, 2015, all of the funds from decedent's Key Bank account(s) were withdrawn and put into Chase Bank accounts which were opened as joint savings and checking accounts with Lori.
Upon learning that Lori had taken their father to Las Vegas, Karen called the West Seneca police who contacted decedent. The police report of the incident states that decedent "did not sound like he was with it mentally"; and the reporting officer stated that he "could hear Lori coaching [decedent] what to say in the background."
On April 3, 2015, Lori took decedent to an attorney's office in Las Vegas, where he allegedly executed the 2015 Will at issue now. Decedent also appointed Lori as his power of attorney and healthcare proxy.
While decedent was in Las Vegas, Lori placed him in an adult living facility. She also made plans to have her sister, Joanne, a realtor, sell decedent's home in West Seneca.
Karen commenced an MHL article 81 proceeding on April 7, 2015, in Erie County Supreme Court to be appointed decedent's personal and property needs guardian. Leigh Anderson, Esq. [hereinafter, Anderson] was appointed as court evaluator in the matter. After some initial resistance, Lori returned decedent to West Seneca on May 19, 2015, to meet with Anderson.
Decedent testified at his June 1, 2015 guardianship hearing, and he candidly acknowledged "that there are times that I am not myself, let's put it that way." The Court [Dillon, J.] found that, although decedent displayed some signs of confusion, he possessed the requisite "testimonial capacity" and accepted his testimony ( see, e.g. People v. Rensing , 14 N.Y.2d 210, 213, 250 N.Y.S.2d 401, 199 N.E.2d 489 [1964] ).
Decedent testified that "Lori persuaded me" to go to Las Vegas with her but that he was not happy with her, especially when she "put me in an adult living". Decedent also testified that he had not authorized Lori to withdraw his money, and he complained that Lori had "pulled a fast one" on him:
" what happened here is that she , which is Lori, took her own initiative to withdraw the -- the amount of money " (emphasis added).
Decedent testified, in response to court evaluator Anderson's questions to him about the nearly $60,000 which was withdrawn from his accounts while he was in Las Vegas, as follows:
"Q. Those two checks total about $60,000?
A. That is a lot. I would never — I would never sign that one and let her withdraw that kind of money.
Q. Now, the — the her that withdraw — withdrew your money, that was your daughter Lori?
A. Yes.
Q. Do you know what Lori did with your money?
A. No, I don't.
* * *
Q. You never had any thought to give that money to Lori, did you ?
A. No, I did not. In other words, to what I could see, she just helped herself.
Q. She took your money without your consent?
A. Yes.
Q. Okay. That was a bad thing, wasn't it?
A. Yes, it was.
Q. Tell Judge Dillon what you told me about her doing that.
A. Yes, it's a very dirty thing within the family to strike something like that. I've heard of cases.
Q. Pardon me?
A. I said I've heard of cases that they do things like that, but I didn't think on my — it would happen to me " (emphasis added).
Decedent told the Court that he wanted Karen to be appointed as his guardian. When asked if there was "anything else" he wanted to tell the Court, decedent said:
"No, but I'm really not satisfied with Lori pulling a fast one on me like this."
The Court then asked decedent the following questions:
"THE COURT: Mr. Panek, you've said that those are not your signatures on that check; is that correct?
THE WITNESS: Yes. I — I can verify that that is that's a forged — that's a forgery.
THE COURT: Did you ever tell Lori it was okay to remove money from your bank account?
THE WITNESS: No.
THE COURT: Okay. Doesn't always have to be your signature, you can authorize somebody else to sign your name, that's why — that's why I was asking.
THE WITNESS: Yes."
Following the hearing, the Court appointed Karen as decedent's MHL article 81 guardian, noting specifically that decedent had consented on the record to that appointment.
Karen obtained certified records from Chase Bank which show that Lori withdrew money from the joint account she set up in Las Vegas with decedent, including a $50,000 withdrawal. Lori also used decedent's money to purchase electronics and furniture, among other things.
Karen commenced a conversion action against Lori and Joanne in Erie County Supreme Court on behalf of decedent to recover decedent's money. The action was stayed when Lori and Joanne filed for Chapter 7 and 13 bankruptcy in federal court.
In the federal Bankruptcy Court for the District of Nevada, Karen pursued an "adversary proceeding" against Lori. After a November, 2018, trial in which both Karen and Lori testified, the Court [Landis, J.] issued a Judgment, dated August 20, 2019, based upon its extensive Memorandum and Order, in which the Court found that Lori had committed larceny with respect to decedent's assets:
"To the extent that Tangelder's objection to the discharge of his claim against Evens is predicated upon larceny in the context of Section 523(a)(4), she was first required to prove by a preponderance of the evidence that Evens wrongfully came into possession of Panek's funds, Evens appropriated the money to a use other than the use for which that money was intended, and the presence of circumstances indicating fraud. Tangelder carried that burden of proof as to each and all of those elements.
The evidence reflects that on March 29, 2015, Evens swiftly and secretly took Panek from the home he had lived in since 1974 without prior notice to Tangelder — his primary caretaker — and without his medication, which was in Tangelder's possession at all times. As of March 29, 2015, Panek, who was diagnosed with dementia a year prior, had $60,390.66 in a New York bank account. On March 30, 2015, the day after Evens took Panek from his home and brought him to Las Vegas, Evens promptly opened up a Nevada checking account for Panek on which she was the cosigner and transferred the entire $60,390.66 into that account. Shortly thereafter, large charges were made in Las Vegas either in Panek's name or on the debit card tied to his newly-opened Nevada bank account to which Evens had access. When the New York State Court ordered an evaluation of Panek, Evens promptly withdrew $50,000 from Panek's Nevada bank account a mere ten days prior to his flight back to New York for that evaluation. Evens claimed that the $50,000 was hers because she had previously given Panek $50,000 in cash from her own money. Evens did not, however, present any evidence substantiating this claim other than her own self-serving testimony which lacks credibility. Notably, while Evens testified at trial that as of May 2015, she had more than $50,000 in cash that she kept in a safe in her home, she listed $0.00 in cash on Schedule A/B: Property filed under oath in support of her July 18, 2017 bankruptcy petition. Evens has not returned or otherwise accounted for Panek's money. Furthermore, the weight of the credible evidence before the Court runs counter to Evens’ explanation. Both Tangelder and Anderson credibly testified that they believed Evens had kidnapped Panek and stolen his money, and Panek testified during his guardianship proceeding that he did not know why he left his home and that Evens "helped herself" to his money without his consent. The record evidence at trial is replete with circumstances indicating fraud.
Having carefully reviewed the record evidence developed at trial, the Court concludes that Tangelder earned her burden of proving by a preponderance of the evidence each essential element of her dischargeability objection claim under Section 523(a)(4) to the extent that claim is predicated upon larceny. As a result, Tangelder's $60,390.66 claim against Evens will be excepted from Evens’ bankruptcy discharge as a result of Evens’ larceny in the context of Section 523(a)(4).
H. Analysis of Tangelder's § 523(a)(6) Claim
1. Evens Willfully Injured Panek in the Context of § 523(a)(6)
The evidence reflects that Evens did not have a close relationship with Panek. To the contrary, prior to being diagnosed with dementia, Panek disinherited Evens from his will. Tangelder, on the other hand, had a strong relationship with Panek and served as his primary caretaker. Panek's affinity for Tangelder, and discord with Evens, was reflected during his trial testimony in the guardianship proceeding, where Panek expressed his consent to having Tangelder appointed to serve as his guardian, 43 and testified that Evens "pull[ed] a fast one" on him by "helping] herself" to his money without his consent. 44
43 See Plaintiffs Tr. Ex. 6 at 14:18-22, 15:12-16:13, 17:4-23, 21:9-15, and 23:6-17.
44 See id. at 21:16-23:5 and 24:9-18.
The record evidence shows that Tangelder visited Panek every day at his home and brought him his medications every morning and evening to ensure he did not take too much. But despite Tangelder's status as Panek's primary caretaker, and Panek's apparent need for such a caretaker to help ensure that he took the proper amount of medication prescribed to address his diagnosed dementia, Evens took Panek to Las Vegas without prior notice to Tangelder and without ensuring that Panek had all necessary medication. The record reflects that Evens’ first priority was opening up a new bank account for Panek in Nevada and transferring all his money away from his New York bank account-where Tangelder held a power of attorney on file-instead of ensuring that Panek had all of his medications. Sometime after establishing the new Nevada account on which she was cosigner, Evens then placed Panek into an assisted living facility , and now invites the Court to find that Panek desired to leave the New York home he had lived in since 1974, without his medications, abandoning his beloved daughter and primary caretaker, and chose to live in an assisted living facility in a different state. On this record, the Court declines that invitation.
The Court concludes on the record before it that Evens had a subjective motive to inflict injury by taking all of Panek's money and depriving him of the same to spend as he saw fit, including distributing that money under a will in which she was expressly disinherited. Additionally, the Court concludes that Evens believed that substantial injury would result to Panek when she took and deprived Panek of his money, as she took his money despite having been disinherited under the terms of his will. See Hernandez. 2011 WL 3300927 at *4, quoting Ormsby. 591 F.3d at 1206 ("The debtor is charged with the knowledge of the natural consequences of his [or her] actions."). Ultimately, the Court concludes that Tangelder has satisfied her burden to show by a preponderance of the evidence that Evens willfully injured Panek and his property within the ambit of Section 523(a)(6).
2. Evens Maliciously Injured Panek in the Context of § 523(a)(6)
The preponderance of the evidence developed at trial likewise established each of the four elements required to satisfy the separate and distinct malicious injury prong in the Section 523(a)(4) analytical calculus. A wrongful act was committed by Evens when she "pulled a fast one" on Panek, took $60,390.66 of his funds from his bank account in New York without his consent, and redeposited them in a Nevada account that she had access to. Evens acted intentionally in doing so , as the account opened in Nevada to receive the funds from Panek's New York account has her name on it. Evens’ actions necessarily caused injury to Panek and his property, as Evens never returned the money and effectively received a de facto inheritance despite the fact that Panek had disinherited Evens through his will. The preponderance of the evidence developed at trial established that there was no just cause or excuse for Evens’ actions, and that she acted in her own self-interest without Panek's consent. In summary, and for the reasons set forth above, the Court concludes that Tangelder established by a preponderance of the evidence that Evens committed a malicious injury to Panek and his property in the context of Section 523(a)(6).
3. Because the Preponderance of the Evidence at Trial Established that Evens Both Willfully and Maliciously Injured Panek, Tangelder's Claim Must Be Excepted From Evens’ Bankruptcy Discharge Pursuant to § 523(a)(6)
‘The exception [to discharge under § 523(a)(6)] is measured by the nature of the act, i.e., whether it was one which caused willful and malicious injuries. All liabilities resulting therefrom are nondischargeable.’ Suarez. 400 B.R. at 740. Having carefully considered the nature of Evens’ actions, as well as all of the evidence developed at trial, the Court concludes that Tangelder proved by a preponderance of the evidence that Evens both willfully and maliciously injured Panek and his property. As a result, Tangelder's claim will be excepted from Evens’ bankruptcy discharge pursuant to Section 523(a)(6)" (emphasis added).
It is worth pointing out that the Bankruptcy Court expressly found that Lori "was not credible" in her trial testimony.
It is worth pointing out that the Bankruptcy Court expressly found that Lori "was not credible" in her trial testimony.
(B)
On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law ( Matter of Cameron , 126 A.D.3d 1167, 1168 [2015] ). If such a showing is made, the burden then shifts to the party opposing the motion to "produce sufficient evidence to establish the existence of material issues of fact which require a trial" ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). As has been often-stated:
"Summary judgment may be granted only where it is clear that no triable issue of material fact exists ( see, e.g. Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986]) ; Phillips v. Joseph Kantor & Co. , 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129 [1972]. The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that ‘although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues’ ( Matter of Coniglio , 242 A.D.2d 901, 663 N.Y.S.2d 456 [1997] ). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of fact sensitive nature, such as fraud and undue influence ( see, e.g. Matter of Neuman , 14 A.D.3d 567, 789 N.Y.S.2d 181 [2005] ; Matter of Goldberg , 180 A.D.2d 528, 580 N.Y.S.2d 655 [1992] ).
To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact ( Stainless, Inc. v. Employers Fire Ins. Co. , 69 A.D.2d 27, 418 N.Y.S.2d 76 [1979], aff'd NY2d 924 [1980]). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice ( Matter of Newman , 14 A.D.3d 657, 788 N.Y.S.2d 857 [2005] ). Moreover, the court is required to search the record when it is engaged in the process of issue finding ( Fullman v. 142 E. 27th St. Assocs. , 1 N.Y.3d 211, 770 N.Y.S.2d 707, 802 N.E.2d 1105 [2004] ; Insurance A.G. v. Moor-Jankowski , 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270 [1991] )" ( Matter of Zirinsky , 10 Misc 3d 1052A [2005], emphasis added, aff'd 43 AD3d 946 [2007] ; see also Matter of Colverd , 52 A.D.3d 971, 860 N.Y.S.2d 254 [2008], Matter of Ryan , 34 A.D.3d 212, 824 N.Y.S.2d 20 [2006], and Matter of Kubecka , 15 Misc 3d 1129A [2007]).
A Court may grant probate when it is "satisfied with the genuineness of the will and the validity of its execution" ( SCPA 1408[1] ). The Will must have been duly executed, and the testator at the time of its execution must have been competent to make a Will and not under any restraint ( SCPA 1408[2] ). A testator must sign the Will at its end ( EPTL 3-2.1 [a] [1] ), and must sign in the presence of at least two attesting witnesses or acknowledge his signature to each attesting witness separately ( EPTL 3-2.1 [a] [2] and [4] ). The testator must also at some point during the execution ceremony declare that the instrument being signed is his Will (EPTL 3-.21 [a] [3]).
The proponent of the Will bears the burden of proving due execution of the Will and testamentary capacity ( see e.g. Matter of Kumstar , 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 [1985], and Matter of Moser , 27 Misc 2d 415, 210 N.Y.S.2d 410 [1961] ; see also PJI 7:45 and 7:48 ), whereas the burden of proof for fraud or undue influence rests on the party who asserts such claim ( see e.g. Matter of Walther , 6 N.Y.2d 49, 54, 188 N.Y.S.2d 168, 159 N.E.2d 665 [1959] ; see also Matter of Mele , 113 A.D.3d 858, 860, 979 N.Y.S.2d 403 [2014], and Matter of Paigo , 53 A.D.3d 836, 839, 863 N.Y.S.2d 508 [2008] ).
The issue before this Court is whether Karen has established her prima facie entitlement to summary judgment finding that decedent's 2015 Will is not valid and, for that reason, denying probate to it, and, if so, whether Lori has raised any material issue of fact which would require a trial ( Matter of Bordell , 150 A.D.3d 1446, 1446 [2017] ).
(C)
(i)
Karen contends that the 2015 Will was not voluntarily made and that, among other things, it was the product of undue influence.
The party asserting undue influence has the burden of proof ( Matter of Fellows , 16 A.D.3d 995, 792 N.Y.S.2d 664 [2005] ). To establish undue influence, a party is required to demonstrate that decedent "was actually constrained to act against [his or 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" ( Matter of Colverd, 52 A.D.3d 971, 973, 860 N.Y.S.2d 254 [2008], (emphasis added); see also Lewis v. DiMaggio , 151 A.D.3d 1296, 1299 [2017] ).
In Matter of Panek , 237 A.D.2d 82, 84, 667 N.Y.S.2d 177 [1997], Presiding Justice Denman set out the guiding legal principles where undue influence is alleged:
" ‘It must be shown 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. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear’ ( Matter of Walther, 6 N.Y.2d 49, 53-54, 188 N.Y.S.2d 168, 159 N.E.2d 665, quoting Children's Aid Socy. v Loveridge, 70 N.Y. 387, 394 ).
‘Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another’ ( Matter of Burke, 82 A.D.2d 260, 269, 441 N.Y.S.2d 542 ; see also, Matter of Collins, supra, at 53). Thus, undue influence most often is not the subject of direct proof, but rather is shown by circumstantial evidence ( see, Matter of Collins, supra, 124 A.D.2d at 53-54, 510 N.Y.S.2d 940, citing Matter of Walther, supra, at 54, 188 N.Y.S.2d 168, 159 N.E.2d 665 ). Undue influence ‘can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person ’ ( Rollwagen v. Rollwagen, 63 N.Y. 504, 519 ; see, Matter of Anna, supra, at 424, 210 N.Y.S.2d 410 ; Matter of Collins, supra, at 54)" (emphasis added; see also Matter of Van Horn , 68 Misc 3d 1217(A) [A] [2020], 2020 NY Misc LEXIS 5098).
(ii)
Before applying the foregoing substantive legal principles to this matter, it is first necessary to determine what, if any, res judicata or collateral estoppel effects the determinations by the Nevada Bankruptcy Court and the New York MHL article 81 Court may have here. Res judicata, or claim preclusion, means that "a valid final judgment bars future actions between the same parties on the ‘same cause of action’ " ( Reilly v. Reid , 45 N.Y.2d 24, 27, 407 N.Y.S.2d 645, 379 N.E.2d 172 [1978] ). "[A] new claim constitutes the same cause of action as the formerly litigated claim if they both arise out of the same transaction or occurrence or series of transactions or occurrences, even if the new claim is based upon a different legal theory or seeks a different remedy" ( Troy v. Goord , 300 A.D.2d 1086, 1087, 752 N.Y.S.2d 460 [2002] ). Our Court of Appeals, by Judge Cardozo, long ago wrote that
This Court requested that the parties brief this issue, and both sides submitted a writing on the matter.
"[a] judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first" ( Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp. , 250 N.Y. 304, 306-307, 165 N.E. 456 [1929] ).
Res judicata does not apply where a plaintiff "was unable to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple remedies or forms of relief in a single action" ( Parker v. Blauvelt Volunteer Fire Co. , 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999], quoting Restatement [Second] of Judgments § 26 [1] [c]).
Collateral estoppel, or issue preclusion, "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" ( Ryan v. New York Telephone Co. , 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ). The issue must have been material to the first proceeding and the party against whom it is asserted must have been "afforded a full and fair opportunity" to litigate it ( id., at 500-501, 478 N.Y.S.2d 823, 467 N.E.2d 487 ).
The burden to show the identity and decisiveness of an issue is on the proponent of collateral estoppel, while the burden to show an absence of a full and fair opportunity to litigate is on the opponent ( id. ). A decision made "freely and knowingly" not to be represented by legal counsel in the first proceeding does not necessarily make that proceeding unfair ( id., at 504, 478 N.Y.S.2d 823, 467 N.E.2d 487 ).
The cause of action here — the validity of decedent's 2015 Will — is not the same as those which were at issue before the Bankruptcy Court and the Court for the MHL article 81 proceeding. The Court of Appeals has stated that "[i]n properly seeking to deny a litigant two ‘days in court’, courts must be careful not to deprive him of one" ( Reilly v. Reid, supra , at 28, 407 N.Y.S.2d 645, 379 N.E.2d 172 ). Thus, I conclude that res judicata, or claim preclusion, does not apply here.
Although the issue of invalidating the 2015 Will was raised in the article 81 proceeding, the Court pointed out that such issue was one for Surrogate's Court.
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Collateral estoppel, which precludes discrete issues from being relitigated between the same parties — or those in privity with them — is quite another matter. Lori and Karen both testified at the Nevada bankruptcy trial, and that Court made detailed, specific findings of fact and made conclusions based upon that testimony. Thus, to the extent that there are overlapping factual issues between the bankruptcy matter and this one, collateral estoppel may properly be applied.
(iii)
I turn now to Karen's claim that decedent's 2015 Will was the product of Lori's undue influence over decedent.
The Bankruptcy Court found that Lori "had a subjective motive to inflict injury by taking all of [decedent's] money and depriving him of the same to spend as he saw fit, including distributing that money under a will in which she was expressly disinherited " (emphasis added). This finding was material under 11 U.S.C. § 523(a)(6), an element of which is "a subjective motive to inflict injury." Lori thus had, and the Court found, the subjective motive to obtain money from decedent since she was disinherited under his 2011 Will. The issue in this case of whether Lori had a motive to unduly influence decedent in order to obtain his assets was decided in the Bankruptcy Court proceeding, and that finding applies equally in this case.
With respect to the second element, the opportunity to influence decedent, the Bankruptcy Court found that Lori "swiftly and secretly took [decedent] from the home he had lived in since 1974 without prior notice to [Karen] — his primary caretaker — and without his medication." This finding was an essential aspect of the 11 U.S.C. § 523(a)(4) requirement of "circumstances indicating fraud," and those actions by Lori created the opportunity for her to compel decedent — who was thereby isolated from Karen on whom he had relied daily for a number of years — to act as she wanted. Additionally, the absence of his daily medications also made decedent more susceptible to being unduly influenced by Lori. Thus, the issue in this case of whether Lori had the opportunity to unduly influence decedent was decided in the Bankruptcy Court proceeding.
There is finally the question of whether Lori actually exerted undue influence over decedent to make the 2015 Will.
In Matter of VanHorn , supra, the Court noted that the actual exertion of undue influence has been found where "(1) the influencer cut off the testator from his communication with family and friends and regular activities, (2) testator began to spend money on the influencer and third parties as he never did before, and began incurring debts that he never had before, (3) influencer was observed to be domineering over and abusive towards the testator, (4) testator suffered from physical and mental ailments related to age" (citing Matter of Bogen , 2014 WL 5827936, 2014 NY Misc LEXIS 4826, 2014 N.Y. Slip Op. 32844(U) [U], dec. Nov. 7, 2014).
In Matter of Antoinette , 238 A.D.2d 762,763, 657 N.Y.S.2d 97 [1997], the Court noted that undue influence is often the product "of a subtle, but pervasive, form of coercion and influence" in which the influencer "manipulate[s]" the other party's "volition to advance [the influencer's] own interests". The Antoinette Court pointed out that "[n]o single circumstance is dispositive in this regard; rather, it is the confluence of many factors" ( id. ).
And, in Matter of Johnson , 46 A.D.3d 1213, 2015 NY Misc LEXIS 136, 847 N.Y.S.2d 786 [dec. Jan. 12, 2015], Broome County Surrogate Judge Guy noted that "[f]inancial, potentially abusive, control of a testator" may constitute proof of the actual exertion of undue influence over a testator.
Here, the following facts have been established either by principles of collateral estoppel or because they have not been contested in any evidentiary way:
(1) Decedent, at age 87 in 2015, was suffering from dementia, was taking six or seven different medications each day (including for his dementia ), and on two occasions in early 2015 he was brought home by West Seneca, New York police officers after he was found by them in potentially dangerous circumstances;
(2) Decedent had disinherited Lori and Joanne in both his 2003 and his 2011 Wills;
(3) On Sunday, March 29, 2015 , Lori took decedent "swiftly and secretly from the home [in West Seneca, New York] he had lived in since 1974 without prior notice to [Karen] — his primary caretaker — and without his medication[s]", to her home in Las Vegas, Nevada;
(4) On Monday, March 30, 2015 , Lori by "fraud", "took [all decedent's] money and depriv[ed] him of the same to spend as he saw fit", thereby "willfully injur[ing] [him] and his property" and also "committed a malicious injury to [him] and his property";
(5) On Monday, March 30, 2015 , according to the factual finding of the Bankruptcy Court trial, Lori called Karen to tell her decedent's West Seneca, New York, home was going to be sold by their sister, Joanne, a realtor, and that nobody could stay in the home; and Lori also "submitted a complaint to the West Seneca Police Department regarding the presence of ‘2 FAMILY MEMBERS AT RESIDENCE WHO ARE NOT SUPPOSED TO BE THERE’, presumably [Karen] and her son";
(6) On Friday, April 3, 2015 , decedent's most recent Will was executed;
(7) On May 20, 2015, after being returned to New York State, decedent told Anderson, the court evaluator appointed in the MHL article 81 proceeding, "that [Lori] stole, in his own words, his ‘pot of gold’ ".
I find, based upon the confluence of all the established facts and circumstances, that Karen has established prima facie that Lori, having willfully and with malice taken all decedent's cash assets on Monday, March 30, 2015, and having that same day set in motion a plan with her sister, Joanne, to sell his West Seneca, New York, home, on April 3, 2015, actually exerted undue influence over decedent to make the April 3, 2015 Will at issue now before me.
In response to Karen's prima facie showing of undue influence, Lori's affidavit in opposition asserts the following:
"We respectfully submit that there was no "undue influence" or "fraud" in the preparation and execution of the Last Will and Testament of HENRY MICHAEL PANEK dated April 3, 2015, as has been alleged.
Instead, the within case presents a widowed eighty-seven (87) year old testator, seeking a new and sunny city, regretting his strained and tumultuous relationships with his children, wanting to make amends for past disputes and misunderstandings, who tried to treat all of his children fairly and equitably as prospective beneficiaries of his estate.
To do so, the decedent executed a Will that provided for all of the children, equally, does not favor any child to the detriment of the other children, and tries not to perpetuate the decedent's lifetime problems beyond his death."
I find that Lori's affidavit attempts now in this probate proceeding to assert facts differently than those found by the Bankruptcy Court in the trial at which Lori and Karen both testified. As to those matters, Lori is collaterally estopped from relitigating such matters, and I conclude that her affidavit in opposition has no evidentiary value as to the critical facts.
Accordingly, I find and conclude that Karen has met her burden of establishing that, with respect to his April 3, 2015 Will, Lori exerted undue influence over decedent to make that Will by evidence of a substantial nature which shows both motive and opportunity, and that Lori actually wielded such influence. I further find that Lori (and Joanne) have failed to raise any issue of material fact with respect to the undue influence issue which would require a trial.
I conclude, therefore, that decedent's April 3, 2015 Will is invalid and may not be admitted to probate.
(iv)
In light of my determination that decedent's April 3, 2015 Will was the product of undue influence over him by Lori, I need not and do not consider Karen's other objections to probate [lack of testamentary capacity and lack of due execution].
(D)
Accordingly, Karen's motion for summary judgment invalidating decedent's April 3, 2015 Will, and dismissing Lori's probate petition, must be, and it hereby is, granted.
Finally, because the proceedings with respect to Karen's petition to probate decedent's 2011 Will were held in abeyance while the issues of the 2015 Will were dealt with, the 2011 Will must now be addressed. The parties are directed to appear virtually before the undersigned on March 17, 2021, at 9:30 a.m. to take up any scheduling with regard to that petition.
This decision shall constitute the Order of this Court and no other or further decree or order shall be required.