Opinion
No. 2013–4142/A.
03-25-2014
In the Matter of the Petition of Marian M. BOROWIAK for Construction of the Terms of an Instrument Purporting to be the September 19, 2006 Last Will and Testament of Richard J. Borowiak, Decedent.
Jennifer G. Flannery, Esq., of Counsel, Damon Morey LLP, Attorneys for Marian M. Borowiak, Executor of Estate.
Jennifer G. Flannery, Esq., of Counsel, Damon Morey LLP, Attorneys for Marian M. Borowiak, Executor of Estate.
Opinion
BARBARA HOWE, J.
Decedent died at age 88 on July 10, 2013, survived by his wife Marian Borowiak [hereafter, Marian], and an adult daughter. On January 2, 2014, an instrument dated September 19, 2006, was admitted to probate in this Court as decedent's Last Will and Testament. Letters testamentary were issued to Marian that same day.
Pending now before me is Marian's petition for construction of the September 19, 2006 document. In its entirety, the document provides as follows:
“Sept. 19, 2006
I Richard J. Borowiak, being of Sound mind and body, Without any ones influence, am designating my wife, MARIAN M. BOROWIAK, To b[e] sole excutor of my estate-(Property, Bank Accounts Stocks & Equipment)
In the event of any accidents, Health Failures or otherwise, I do not wish to be ressitated.
/S/ Richard J. Borowiak
Witnessed by/S/ Dorothy L. Graffius
/S/ Russell J. Deveso”
(A)
In her construction petition, Marian asks that this Court determine that the instrument left decedent's entire estate to her. She contends that, because this was not an attorney-drafted Will, a relaxed view of the contents of the instrument should be taken and that the designation of her “to b[e] sole executor of my estate” should be construed as encompassing language somewhat along the lines of “to inherit all of my estate”. Her attorney's Memorandum of Law makes her position clear:
“[W]e must interpret the language of the Will from [decedent's] point of view as a layman, and more liberally than we would the language of an attorney. Thus, the testator's use of the term sole executor' must be interpreted to mean that he intended the phrase sole executor' to both appoint his spouse as fiduciary and name her as his sole beneficiary. Any other reading would be contrary to the intent and dominant plan or purpose' of the testator when the Will is read as a whole.”
(B)
As Marian suggests, the purpose of a will construction proceeding is to determine decedent's intent from a reading of the entire instrument:
“The prime consideration here as in all construction proceedings is the intention of the testator as expressed in the will. All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy.
This intent, as we have often said, must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.
...
If the court upon reading the will in this setting discerns a dominant purpose or plan of distribution, the individual parts of the will must be read in relation to that purpose and given effect accordingly (Roe v. Vingut, 117 NY204, 212). This is true despite the fact that a literal reading of the portion under construction might yield an inconsistent or contradictory meaning” (Matter of Fabbri, 2 N.Y.2d 236, 239–240 [1957], emphasis added; see also Matter of Lynch, 113 AD3d 616 [2014] and Matter of Phillips, 101 AD3d 1706 [2012] ).
The September 19, 2006 instrument in question contains only two substantive provisions. First, decedent designates his wife to be the sole executor of his estate. Second, decedent includes “do not resuscitate” instructions to be followed in the case of an accident to him, or in the event of “health failures or otherwise.” There is no provision in the instrument disposing of any of decedent's property.
Decedent's September 19, 2006 instrument is really a hybrid document. The “do not resuscitate” provision is clearly intended as a direction to anyone reading the document to be followed while decedent is alive. In that sense, then, that paragraph of the instrument is a “living will” direction (see Public Health Law § 2964[2][b] ).
By contrast, a Will is statutorily defined as “an oral declaration or written instrument, made as prescribed by 3–2.1 or 3–2.2 to take effect upon death, whereby a person ... appoints a fiduciary or makes any other provision for the administration of his estate” (EPTL 1–2.19[a], emphasis added). Only the first provision of this instrument, which nominates his wife as executor of his estate, takes effect after his death. This is a proper testamentary direction, even if it is the only direction to take effect once decedent has died.
It is true that “[m]ost often Wills dispose of the decedent's property” (Turano and Radigan, New York Estate Administration, § 3.01, at 80 [2014 ed] ). However, our Court of Appeals long ago pointed out the following:
“Indeed, it is not an unknown thing that the sole object of the making of a last will has been to appoint an executor, giving no testamentary disposition of the estate, but leaving the executor to dispose of it according to the statute of distribution ...” (Sisters of Charity of St. Vincent DePaul v. Kelly, 67 N.Y. 409, 415 [1876], emphasis added).
And, of course, EPTL 2–1.19(a) expressly so provides (see, 11 Warren's Heaton, Surrogate's Court Practice § 181.01[2][d], at 181–7 [7th ed 2006] [“an instrument merely appointing a fiduciary is a will. This is a codification of common law”] ).
I conclude, therefore, that only the first substantive paragraph of decedent's September 19, 2006 instrument constitutes a Will within the meaning of the statute and relevant case law. Its sole purpose is to direct who shall be the executor of decedent's estate. That is not only its “dominant purpose and plan”, it is its only purpose and plan. I further find and conclude that there are no provisions in the instrument in question directing the disposition of decedent's property, in whole or in part.
Under all these circumstances, it is neither statutorily, nor linguistically, nor legally proper to construe the instrument as Marian has requested, and I hereby deny her request in all respects in that regard.
Finally, I hereby find and conclude that decedent's estate passes according to the laws of intestate distribution (see, EPTL 4–1.1 ), and I hereby so construe the September 19, 2006 instrument.
This decision shall constitute the Order and Decree of this Court and no other or further order or decree shall be required.