Opinion
No. 2012–266.
04-16-2015
Probate Proceeding WILL OF Rita S. EHRENSBERGER Deceased.
Francis X. O'Connor, Esq., for petitioner. Frederick J. Meagher, Jr., Esq., for proponent.
Francis X. O'Connor, Esq., for petitioner.
Frederick J. Meagher, Jr., Esq., for proponent.
Opinion
DAVID H. GUY, J.
Two petitions have been filed in this estate, each seeking the probate of a different instrument. The earlier alleged Will, dated May 1, 2009 (the 2009 Will), has been offered for probate by petition originally filed April 26, 2012, by Alyson M. Thomas, as Executor of the Estate of Leo E. Quinn (Broome County Surrogate's Court File 20012–431), the named Executor. Ms. Thomas is represented on that petition by Francis X. O'Connor, Esq.
The later instrument, dated February 10, 2011 (the 2011 Will), was offered for probate by petition first filed May 22, 2013, by Mildred Hawk, named Executor therein. Ms. Hawk is represented by Frederick J. Meagher, Jr., Esq.
The validity of the 2011 Will must be determined first. Objections to the probate of that instrument were filed by Ms. Thomas, represented by Mr. O'Connor. The parties conducted discovery. In September of 2014, Mildred Hawk (Proponent) moved to disqualify Mr. O'Connor from further representation of Ms. Thomas (Objectant), based on Mr. O'Connor and/or his office being involved in the preparation and execution of a Power of Attorney by decedent in close proximity to the execution of the 2011 Will. The Court rendered a decision and scheduled a hearing on the issue of whether, and to what extent, Mr. O'Connor would be disqualified. Before that hearing was held, Mr. O'Connor withdrew from representation of Objectant and Paul M. Price, Esq., was substituted as counsel.
On May 28, 2014, following the filing of the petition for the probate of the 2011 Will, but before objections to it were filed, the Court convened a hearing, pursuant to SCPA § 1404. Testifying at the 1404 hearing were Proponent, the acknowledged draftsperson of the offered instrument, and witnesses Leah Hawk (ex-daughter-in-law of Proponent) and Carol VanHorn (sister of the Proponent). Proponent is a disqualified witness pursuant to the Dead Man's Statute (CPLR § 4519 ), which was not waived by Objectant, so her 1404 testimony is not admissible as evidence at the trial of this proceeding. The Court was present at the 1404 hearing, but is not considering the Proponent's 1404 testimony in rendering this decision. Though related to Proponent, the witnesses to the Will are not disqualified witnesses for purposes of CPLR § 4519, so their 1404 testimony is part of the record considered by the Court in rendering this decision. The witnesses' relationships to the Proponent are a factor which may be considered by the Court when considering bias or credibility of their testimony. In re Falvey's Will, 29 Misc.2d 417, 212 N.Y.S.2d 366, rev'd on other grounds, 15 A.D.2d 415, 224 N.Y.S.2d 899, aff'd 12 N.Y.2d 759, 234 N.Y.S.2d 713, 186 N.E.2d 563 (1962) ; In re Freeman's Will, 23 Misc.2d 846, 201 N.Y.S.2d 735 (Surr. Ct., Orleans Co., 1960). In this case, the Court has largely credited the witnesses' testimony regarding the execution of the offered instrument.
The burden of proof lies with the Proponent in a Will contest. Based on the affidavits of witnesses filed with the 2011 Will and the testimony of the witnesses at the 1404 hearing, the Court found at the outset of the hearing that the Proponent had met her initial burden of showing the valid execution of the Will. The burden then shifts to the Objectant, who proceeded with her case.
Objectant presented testimony from Dr. Michael J. Wasco, decedent's primary care physician since at least 1997; Bobbie Jo Norris, visiting nurse from Twin Tier Home Health Care, who provided in home services to the Decedent largely in 2010 and 2011; Allison M. Thomas, Objectant; Francis X. O'Connor, Esq., whose office provided legal services to the decedent in 2011; Leah Hawk, witness to the Will and caregiver for decedent from 2010 through November 2011; Roger Scott, MD, who performed and directed wound care for decedent in 2010 and 2011; and Mildred Hawk, Proponent, called as an adverse witness for testimony regarding events subsequent to decedent's death.
So as not to waive the privilege under CPLR § 4519.
The Proponent was examined in support of her petition, with respect to post death events. The Proponent also presented testimony from Sandra J. Hayes, a nurse at Lourdes Hospital who treated decedent for wound care on and off for five years; and Jill Hardy–Hettig, a longtime acquaintance of Proponent who had brief interaction with decedent and Proponent.
FACTS
Decedent was born and raised in Windsor, New York. As an adult, she relocated to New Haven, Connecticut, where she met and married her husband, John (Jack) Ehrensberger. Decedent and her husband subsequently relocated back to Windsor and had a home built on decedent's family homestead property at 349 Honey Hollow Road in the Town of Windsor, where they resided until their respective deaths.
At some point in the mid to late 90's, decedent's husband began to have health problems. An individual named Leo Quinn moved in with the Ehrensbergers at this time, to assist with caregiving of Mr. Ehrensberger. Following Mr. Ehrensberger's death, Mr. Quinn continued to reside with Mrs. Ehrensberger in her home, assuming some needed caregiving responsibilities for her, as well. Eventually Mrs. Ehrensberger, who was 92 when she died in 2012, needed more services than Mr. Quinn could or did provide, and other caregivers were brought into her home, primarily for overnight duties, at least initially.
Mr. and Mrs. Ehrensberger never had any children. They had a close, family-like relationship with Mr. Quinn, who some in the community believed was their son.
In 2003, decedent added Mr. Quinn as a joint owner, with a right of survivorship, on a nearby property at 363 Honey Hollow Road, which had been her brother's home (Objectant's Exhibit D). In 2009, decedent executed the 2009 Will , utilizing the services of attorney Michael J. Gathany, naming Mr. Quinn as executor and sole residuary beneficiary, following modest specific bequests, none of which was to Proponent.
The 2009 Will has been filed for probate by the Objectant herein, but its validity has not yet been determined, as it predates the Will at issue in this proceeding.
Proponent, like decedent a Windsor native, was a long-time acquaintance of decedent. She provided services to decedent, among other things driving her to many medical appointments and on other errands, including shopping and to do her banking. Although decedent drove to a very advanced age, she relied on Proponent's assistance with transportation even before she gave up driving herself. While Mr. Quinn resided with decedent, the evidence indicates that Proponent provided transportation for decedent more than Mr. Quinn did.
Decedent enjoyed a close, family-like relationship with Proponent, as she did with Mr. Quinn. This relationship was described by some as a mother-daughter type relationship.
By at least 2010, decedent's health problems and need for medical assistance were increasing. She suffered from many chronic health problems, including an ulcer, edema, congestive heart failure, COPD, atrial fibrillation, high blood pressure and osteoporosis. She had increasing difficulty hearing in her last few years. According to her primary care doctor, she remained generally alert and her verbal abilities remained intact despite these ailments. At the same time, her primary care physician was aware of her dependence upon others for transportation and other assistance. In his medical opinion, despite her acknowledged strong will and personality, she was subject to the risk of influence by those upon whom she depended, but no more susceptible to such influence than others of her age and medical condition.
One of the chronic conditions for which decedent was treated in the last few years of her life was a lower leg wound, which remained unresolved for at least three years. In 2010, she began to treat with Lourdes Wound Care Center. Decedent had regular visits there—weekly, then monthly—from April of 2010 through at least early 2011. Over the course of that treatment, her wound care physician came to believe that decedent did not fully understand her condition, as it related to her wound and wound care. He felt that she did suffer some cognitive impairment, though not impairment atypical for a woman of her age and medical condition. For this reason, he prescribed home health wound care, to ensure oversight of and compliance by decedent. With treatment at the Wound Care Center and by the home health care nurse, decedent's leg wound did resolve. The home health care nurse who referred by the Wound Care Center to address the decedent's leg wound continued to provide care and oversight in 2010 and 2011 for the wound, as well as the decedent's chronic and acute conditions of congestive heart failure, urinary tract infection, etc. The home health nurse became acquainted with Mr. Quinn at the decedent's house during the course of her treatment. Though not advised specifically of their relationship, she perceived Mr. Quinn as a caregiver and his relationship with decedent like a mother-son relationship. The home health nurse had only one interaction with Proponent, who admittedly visited decedent at hours other than those when the home health care nurse was typically present.
Over the course of treatment by the home health nurse, the decedent's overall health and mobility declined. The nurse's visits initially in 2010 were always conducted in the decedent's kitchen, with her sitting on a stool. By January of 2011, following a hospitalization, the visits were all conducted in the decedent's bedroom, where she remained due to her weakness.
In early February of 2011, there was communication by or on behalf of decedent with attorney O'Connor's office, requesting a power of attorney be prepared from decedent to Proponent. Attorney O'Connor's direct involvement with the preparation of this power of attorney is unclear, as he has documented he was not physically present in his office at that time. In any event, the power of attorney was prepared and on February 3, 2011, Mr. O'Connor's secretary oversaw the execution of and notarized the signatures on a New York State form power of attorney running from decedent to Proponent (Objectant's Exhibit F). The execution of this document took place in Proponent's car, as the decedent was not able to easily get into the office at that time.
On February 9, 2011, after Mr. O'Connor returned to his office, he had a conference with decedent and Proponent. It was communicated to Mr. O'Connor at that meeting that the decedent wanted Proponent's name inserted on the title to the property at 364 Honey Hollow Road (her brother's property) in lieu of her own name, so that Proponent would be co-owner of that property with Mr. Quinn, the existing co-tenant. Mr. O'Connor was concerned and uncomfortable about the meeting and the action requested of him. The discussion at the meeting was led by the Proponent. Nonetheless, Mr. O'Connor did move forward with the preparation of the requested deed and supporting papers (Objectant's Exhibit G).
On February 10, 2011, the decedent executed the 2011 Will at her home in the presence of Proponent and the two witnesses. The 2011 Will was prepared by the Proponent. It was never disclosed to or discussed with Mr. O'Connor, though he was meeting with the decedent and Proponent at this time on other legal matters.
One of the witnesses to the Will, Leah Hawk, had been a caregiver for decedent since 2010. Her care began with wound care assistance, as Leah then worked in the office of a wound care physician. She was present at the decedent's home as a caregiver on the day the Will was executed. She facilitated the execution of the Will that day by calling the Proponent to advise her that Mr. Quinn was out of the house for some period of time. The execution was done purposely in Mr. Quinn's absence. Leah Hawk was at that time a tenant, with her children (Proponent's grandchildren), in the house at 364 Honey Hollow Road, devised to Proponent by the 2011 Will and was also the subject of the deed requested to be prepared by attorney O'Connor.
On February 11, 2011, Proponent delivered a typed document titled “deed change” to Mr. O'Connor (Objectant's Exhibit H). The typewritten language confirms the decedent's desire for the real estate transaction that she and Proponent had met with Mr. O'Connor about two days earlier. The document is not witnessed, but is signed by decedent, next to a handwritten “X” placed on the paper, evidently to identify the signature location for decedent. The document has remained in Mr. O'Connor's file since that date.
On February 16, 2011, attorney O'Connor again met with decedent and Proponent. His contemporaneous time records from that meeting confirm his recollection that he made the determination at that time that decedent was not competent to sign the deed and supporting papers. His opinion was based on his observation of the decedent and the appearance to him of a lack of independent decision making by her with respect to the real estate transaction. He believed she was being “told what to do” by Proponent.
Mr. O'Connor testified that he did meet with decedent alone for a portion of the conference on February 16. On cross examination, his recollection was refreshed that the conference with the decedent and Proponent on February 16 likely took place in Proponent's car, parked outside of Mr. O'Connor's office. Again, the Will executed days earlier by decedent was not mentioned to Mr. O'Connor.
On February 22, 2011, Mr. O'Connor received a hand delivered letter (Objectant's Exhibit J) stating decedent wanted to remove Proponent as her power of attorney, effective immediately, and appoint Mr. Quinn in that role. This letter is also typed, but bears the signatures of decedent as well as two witnesses, a husband and wife known to all of Mr. O'Connor, decedent and Proponent. The wife of the witnessing couple was the person who delivered the letter to Mr. O'Connor. Mr. O'Connor sent a letter to Proponent the same day (Objectant's Exhibit I) advising her that he had received a written directive from decedent revoking her power of attorney. A copy of that letter was mailed to decedent, but Mr. O'Connor never had further direct communication with decedent after his receipt of her February 22, 2011, letter.
Or with Proponent, until after decedent's death, more than a year later.
Following the execution of the 2011 Will, the original Will was left in the care and custody of Leah Hawks, so as to keep the Will's existence from Mr. Quinn. Leah stored the original Will in her house, across the street, among her other papers.
The decedent died March 27, 2012. Mr. Quinn died shortly thereafter, on May 14, 2012. Objectant filed a petition for the probate of Mr. Quinn's Will on July 16, 2012. She also filed a petition for the probate of the decedent's 2009 Will, as the fiduciary of the fiduciary named in that Will, on November 30, 2012.
Mr. Quinn filed a petition for probate of the 2009 Will on April 26, 2012, shortly before his own death.
The probate proceedings for both Mr. Quinn's estate and decedent's estate were delayed due to difficulties in identifying and locating their respective family members. Proponent participated in numerous Court appearances, in both Mr. Quinn's probate proceeding and this probate proceeding, in each case in opposition to Objectant. At no time did the Proponent, or her counsel, ever raise with the Court the fact that Proponent was aware of the later 2011 Will.
Again, Mr. Quinn and Mrs. Ehrensberger were not related. Mr. Quinn's probate was complicated by the fact that he had adopted out children, disclosed to the Court only after the initial probate filing. Mrs. Ehrensberger had some remote distributees whose whereabouts and status were difficult to determine.
The 2011 Will was only disclosed to the Court in May of 2013, at a scheduled Court proceeding on the 2009 Will. Leah Hawk's testimony was that she had been unable to locate the 2011 Will after Mrs. Ehrensberger's death, including during the packing up of her home when she moved out of the 364 Honey Hollow Road property in July of 2012, and found the 2011 Will when going through some of her personal paperwork, at Proponent's request, on Mother's Day in 2013.
DECISION
The proponent of a Will has the burden of proving that the testator possessed testamentary capacity, including (1) that she understood the nature and consequences of executing a Will; (2) that she knew the nature and extent of property she was disposing of; and (3) that she knew those who would be considered “the natural objects of her bounty”. Matter Kumstar, 66 N.Y.2d 691, 496 N.Y.S.2d 414, 487 N.E.2d 271 (1985).
The proponent establishes a prima facie case for probate by submission of an instrument with a proper attestation clause and witness affidavits (and here, Section 1404 examination testimony). The burden then shifts to the Objectant to establish the lack of capacity on the part of the decedent. Matter of Halpern, 76 A.D.3d 429, 906 N.Y.S.2d 253 (1st Dept., 2010), Aff'd, 16 N.Y.3d 777, 919 N.Y.S.2d 503, 944 N.E.2d 1142 (2011).
Here, the witness affidavits and the 1404 testimony of the witnesses establish a prima facie case for probate of the 2011 Will, so the trial commenced with Objectant's case. The filed objections include lack of proper execution, lack of capacity and undue influence. Following discovery, the Objectant's case at trial focused on the issue of undue influence, as does this decision. Execution will also be addressed.
In order to succeed in proving undue influence, Objectant must show that the offered Will was not the independent action of the decedent, but was the result of the imposition of Proponent's will upon her. Undue influence must be proven by evidence of a substantial nature which shows motive, opportunity, and specific acts allegedly constituting undue influence. Matter of Makitra, 101 A.D.3d 1579, 956 N.Y.S.2d 780 (4th Dept., 2012). Proponent's extensive contact with decedent, particularly her contacts purposely outside of the presence of decedent's live-in caregiver and attorney, gave Proponent the opportunity to exert undue influence upon decedent. Proponent's grandchildren and their mother were residing in a house owned by decedent. This, combined with Proponent's strained relationship with decedent's live-in caregiver, known to be the beneficiary of decedent's then existing 2009 Will, gave Proponent a motivation to unduly influence decedent. The most difficult element of the proof of undue influence, specifying acts of undue influence, is more difficult to prove.
With respect to the issue of undue influence, the burden of proof remains on the Objectant unless and until Objectant establishes the existence of a confidential relationship between the Proponent and the decedent. If the Objectant is successful in showing that there was a confidential relationship between decedent and Proponent, as a matter of fact or as a matter of law, the burden shifts to the Proponent to at least explain the circumstances of the Will and, potentially, prove that the Will was not the subject of undue influence. Matter of Antoinette, 238 A.D.2d 762, 657 N.Y.S.2d 97 (3rd Dept., 1997) ; Matter of Neenan, 35 A.D.3d 475, 827 N.Y.S.2d 164 (2nd Dept., 2006) ; Boncyk v. Williams, 119 AD 1124 (3rd Dept., 2014); Matter of Graeve, 113 AD3d 963 (3rd Dept., 2014). The existence of a confidential relationship and the resulting presumption of undue influence are typically questions for the fact finder, here the Court. Matter of Nealon, 104 A.D.3d 1088, 962 N.Y.S.2d 481 (3rd Dept., 2013).
Undue influence is often proven by circumstantial, rather than direct, proof. The circumstances relevant to a finding of undue influence, and confidential relationship, include whether the primary beneficiary was associated with the draftsperson; whether the testator was isolated from friends and family; whether the provisions of the disputed Will were a radical departure from the testator's prior Wills; whether the testator had knowledge of the Will's provisions; whether the Proponent controlled the testator's lifetime affairs; and, whether the Proponent is disproportionately benefited by the Will at issue. In re Elmore, 42 A.D.2d 240, 346 N.Y.S.2d 182 (3rd Dept., 1973).
Here, the Proponent and primary beneficiary, though not an attorney, was in fact the draftsperson of the Will. The undisputed evidence is that the Will was prepared and executed without the knowledge of other family and friends. Proponent was not a beneficiary under decedent's 2009 Will. Similarly, the interest of the primary beneficiary under the prior Will was reduced or eliminated in the 2011 Will.
In particular, Leo Quinn, who was the known primary beneficiary of decedent's prior Will. Mr. Quinn himself may have been in a confidential relationship with decedent, but that does not preclude a similar finding with respect to Proponent.
While some provision was made for Mr. Quinn in the 2011 Will, the knowledge that he was terminally ill, combined with the atypical lengthy survivorship provision in the 2011 Will, made it very likely that his interest in Decedent's estate would be completely eliminated, as it in fact was with his death on May 14, 2012.
Other factors supporting a finding of confidential relationship between decedent and Proponent are the long term “family-like” relationship between them; decedent's reliance on Proponent for transportation, particularly in the last few years of her life when decedent was unable to drive. The evidence confirms that “competition” between Proponent and Mr. Quinn for control of decedent existed for some time, at least below the surface, but was clearly evident by February of 2011, when the offered instrument was executed. It was Proponent who prepared the offered Will, without any legal assistance, particularly troubling in light of the fact that Proponent was involved in arranging for legal assistance for decedent for other matters (power of attorney, deed) in the exact time frame that this Will was prepared and executed. Proponent also arranged for the witnesses to the Will and oversaw the execution ceremony. The facts of this case are very similar to those of Matter of Paigo, 53 A.D.3d 836, 863 N.Y.S.2d 508 (3rd Dept., 2008). The one different fact in this case is that the proponent in Paigo was decedent's sister, while Proponent here has no direct family relationship to decedent, a fact supportive of a finding of confidential relationship and the resulting inference of undue influence.
Mr. Quinn, the other individual with a “family-like relationship” with decedent was not the primary transportation assistant to decedent. Even he relied upon Proponent for transportation.
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Considering the totality of the facts as found by the Court, the Court finds that a confidential relationship did exist between decedent and Proponent. This shifts the burden to Proponent to adequately explain the basis for the offered instrument (Matter of Antoinette, supra; Matter of Neenan, supra ) or prove that the Will was not the subject of undue influence (Boncyk v. Williams, supra; Matter of Graeve, supra ). Whether the Court holds merely an explanation, or clear and convincing proof is required of Proponent, the legal result is the same. Proponent has offered no independent admissible evidence to explain the radical departure from decedent's prior testamentary scheme, or to prove that the 2011 Will was not created through her influence on the decedent. The only evidence offered by Proponent, her own testimony, is barred by CPLR § 4519.
Proponent cannot sustain her burden. Proponent bears the risk and must suffer the consequences of her decision to keep this Will secret from all save herself. She clearly was aware that estate planning was a subject best handled with the assistance of counsel, having taken decedent to a lawyer for execution of a power of attorney and to pursue a real estate title change for estate planning purposes in the immediate time frame of the preparation and execution of this Will.
Proponent makes much of the fact that the evidence submitted shows that decedent was “strong-willed”, “had a mind of her own” and “knew what she wanted”. It is often said that a person with dementia, or otherwise diminished capacity, can have a “lucid moment” and at that time have the capacity to direct and execute a Will. In re Fiumera, 47 N.Y.2d 845, 418 N.Y.S.2d 579, 392 N.E.2d 565 (1979).It is also true that a person who is generally alert and oriented, stubborn, or with a strong personality, may be subjected to and succumb to influence.
The unrebutted testimony of decedent's medical providers was that decedent was in a position to be influenced by those upon whom she depended, including Proponent. Decedent's diminished capacity and possible subjection to influence was identified by the attorney working for her at the very same time the 2011 Will was executed. Attorney O'Connor's decision not to allow decedent to execute legal documents was made at that time, and as such is contemporaneous evidence from one charged with a duty to make a decision on legal capacity. This is even more relevant than a physician's testimony of susceptibility to influence.
Proponent tries to raise bias on the part of attorney O'Connor because he subsequently represented Objectant. Mr. O'Connor's representation of Objectant earlier in these proceedings and in other related proceedings does not disqualify his testimony on determinations made and documented by him in 2011. In re Bitterman's Estate, 203 Misc. 796, 118 N.Y.S.2d 859 (Surr. Ct., New York County, 1952) ; In re Kislyk's Estate, 164 Misc. 287, 1 N.Y.S.2d 386 (Surr. Ct., Oneida County, 1937). The finding of a confidential relationship, along with the potential for influence, shifts the burden to Proponent, as noted above. Yet no independent competent evidence was offered by Proponent to satisfy her burden.
The facts of this case distinguish it from recent Third Department decisions upholding probate of Wills against claims of undue influence. In Estate of Vosilla, 121 A.D.3d 1489, 996 N.Y.S.2d 741 (3rd Dept., 2014), decedent's Will was prepared by an independent attorney, which allowed the introduction of evidence indicating the Will was an independent act of decedent. Similarly, in Estate of Prevratil, 121 A.D.3d 137 (3rd Dept., 2014), while one of the beneficiaries participated in the preparation of the Will, it was as a conduit for documents between decedent and her independent attorney, who prepared the instrument and satisfied himself that the Will conformed with decedent's own intention.
Before admitting a Will to probate, the Court must be satisfied that the Will has been validly executed [See SPCA § 1408(1) ], and “that the mind of the testator accompanied the act and that the instrument executed speaks [her] language and relates [her] will”. Estate of Walker, 124 A.D.3d 970 (3rd Dept., 2015), citing Rollwagen v. Rollwagen, 63 N.Y. 504, 517(1876). Certainly decedent was entitled to keep her testamentary plan confidential, but the Court cannot probate this Will over objections without some admissible evidence that it expresses decedent's testamentary intent. As already noted, Proponent has offered no competent evidence that decedent's testamentary intention is reflected in the offered instrument. Walker, supra; see Matter of Paigo, 53 A.D.3d 836, 840, 863 N.Y.S.2d 508 (3rd Dept., 2008) (“petitioner was the only person present when decedent allegedly imparted his desires concerning the disposition of his estate”); compare Matter of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d 168, 159 N.E.2d 665 (1959), where the will was prepared by an attorney after meeting alone twice with the testator and executed (twice in the same day, after a minor modification by testator) under the supervision of two attending physicians who satisfied themselves of testators capacity and testified to the same.
For the above reasons, the petition of Proponent for the probate of the instrument offered as the Last Will and Testament of Rita S. Ehrensberger dated February 10, 2011, is denied. This Decision constitutes the Order of the Court.