Opinion
337-P-07/A.
Decided on December 9, 2010.
Stanley B. Katz, Esq., for Richard Ford, Jr., administrator of the estate of Richard Ford, proponent.
Feder Kaszovitz, LLP, (David Sack, Esq., of counsel) for Phyllis Ford, objectant.
G. Anthony Ford, Eldridge Antoine Ford, Rowena ford and Piercestein Ford, objectants pro se.
In this will contest the court previously granted the proponent's motion for summary judgment to the extent of dismissing all objections except for those alleging lack of testamentary capacity and undue influence (see Matter of Ford, 26 Misc 3d 1213[A], 2010 NY Slip Op 50086 [U]). Thereafter, a bench trial was held on the remaining objections.
The propounded instrument (the will) was executed on July 22, 1986, approximately one year prior to the decedent's death on August 6, 1987, at the age of 89. Her distributees are three post-deceased children, Richard Ford (Richard), George Ford, and Olga D. Smith, and two daughters, Phyllis Ford and Pearline B. Davis. The proponent is Richard's son and the administrator of his estate. Three separate sets of objections were filed by Phyllis, George's children, and Olga's daughter. Pearline originally consented to the application, but then withdrew her consent, and it now appears she is aligned with the objectants, although she did not file objections.
The sole asset of the estate is the decedent's home with respect to which the will provides:
". . . SECOND: I give and devise all of my right, title and interest in and to my two-family home . . . to my loving son, RICHARD FORD, if he shall survive me, to be his absolutely and forever subject o the following conditions: (a) Upon the sale or transfer of title to my said
home by my said son, RICHARD, during his lifetime or upon the death of my said son, whichever shall first occur, either he or his estate shall pay the sums of $5,000.00 to each of my loving children, GEORGE FORD, PEARL DAVIS, OLGA SMITH and PHYLLIS FORD, if they shall survive me.
(b) If any of my said children, GEORGE FORD, PEARL DAVIS, OLGA SMITH and PHYLLIS FORD shall die before he or she shall be entitled to said sum of $5,000.00 as the result of the sale or transfer of my home or by reason of the death of my son, RICHARD FORD, said sum shall be paid to the surviving lawful issue of my said deceased child or, if he or she is not survived by lawful issue, then said sum shall be distributed as part of said child's residuary estate.
(c) My said son, RICHARD FORD, pending the sale or transfer of title to said home or pending his death, shall be entitled to lease out said property or any portion thereof and to retain all rental income received as a result thereof. However, during said period, he shall be responsible for the maintenance and care of said property at his sole cost and expense, including real estate and other local taxes."
The will then provides:
"THIRD: All the rest, residue and remainder of my estate I give, devise and bequeath to my loving children RICHARD FORD, GEORGE FORD, PEARL DAVIS, OLGA SMITH and PHYLLIS FORD in equal shares per stirpes."
The probate petition was not filed until January 31, 2009, almost three years after Richard's death on March 2, 2006, and more than 20 years after the decedent's death. It is undisputed that, during that time, the value of the realty devised to Richard in the will has soared, rendering the $5,000 bequests to the other beneficiaries comparatively insignificant.
All of the parties agree that the decedent suffered a stroke in 1979 which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. All of the testimony also indicates that after her stroke, the decedent's children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. Until her death, the decedent resided on the top floor of her two-family house, and Richard lived in the downstairs apartment where he remained until his death. Richard was a paraplegic after being shot in 1963. Title to the subject realty was in the decedent's name, and although the parties appear to agree that the decedent did not have sufficient funds to have paid the purchase price herself, no definitive proof was adduced to establish who made the purchase payment or that the purchase price was $25,000 as apparently agreed upon among the family.
During the proponent's case, the attorney-draftsman testified that he had been an attorney for 52 years, during which time, he drafted and supervised the execution of over 1,000 wills. On the day prior to the execution of the propounded will, Richard called the attorney based on the recommendation of one of the attorney's clients, and gave him instructions which he followed when drafting the will. The attorney and his wife, who was also his secretary, went to the decedent's home to serve as the attesting witnesses, admittedly without any knowledge of the decedent's competency. Upon their arrival, they went to the second floor bedroom where the decedent was propped up in her bed. The attorney testified that he read and explained each provision of the will to the decedent, then asked if she understood it and the decedent indicated that she did. After reviewing the will with the decedent, the attorney asked her why was she favoring Richard over her other children. The decedent, who had her left hand under a blanket raised that hand, and with a clenched fist and some emotion, indicated she favored Richard because "he is crippled."
The attorney testified that he presumed that the objectant Phyllis was able to listen to all that transpired while he and his wife were in the decedent's bedroom discussing the will and executing it, as Phyllis was in the hallway outside the bedroom during that approximately 45-minute period. The attorney recollected that the decedent had difficulty signing the will, but did so with her right hand to the best of her ability. Thereafter, the attorney, his wife and the decedent's aide were requested to, and did, sign as attesting witnesses. The will contains an attestation clause. The attorney stated that the execution ceremony was in compliance with EPTL 3-2.1 and that the decedent understood the provisions of the will and possessed testamentary capacity. He did not, however, ask the decedent any specific questions to ascertain her knowledge of the date or time, her assets or her relationship to family members other than Richard. The witness explained that he did not question the decedent concerning the nature and extent of her property because Richard told him that the house was her sole asset. The attorney charged $75 for his services.
According to the attorney, Richard supplied the $5,000 figure that was to be paid to the decedent's other children upon the sale of the realty. Although the attorney had no idea about the value of the house when the will was executed, sometime thereafter he learned that the house was originally purchased for $25,000. The attorney conceded on cross examination that it was it was highly unusual for him to receive drafting instructions solely from the principal beneficiary under a will. After the decedent's death, Richard called the attorney and indicated that he wanted the will probated, and the attorney sent a copy of it to the decedent's other children and advised them that it would be offered for probate. Subsequently, Richard told him that he no longer wanted to probate the will, as its provisions were causing a family dispute. Shortly before Richard's death in 2006, Richard again told the attorney that he was interested in probating the will; however, no action was taken as another son, George Ford, had recently died and a fiduciary had to be appointed for George's estate before a probate proceeding could be commenced in this estate. The attorney had never met Richard prior to the execution of the will, but Richard subsequently retained him in connection with a landlord-tenant proceeding.
The testimony of the attorney's wife with respect to the execution ceremony was essentially the same as her husband's. The third witness, the decedent's aide, did not testify presumably because, at the time of the trial, none of the parties knew her whereabouts.
The decedent's daughter, Pearline, testified about a subsequent testamentary instrument allegedly executed by the decedent in December, 1986. Based upon Pearline's instructions, the attorney who represented the decedent when the home was purchased drafted the December will. Pearline recruited neighbors as attesting witnesses and the decedent executed that will in her bedroom. The only difference between the two instruments is that under the later one, after the $5,000 payments to the other children, Pearline and Richard, or his estate, receive equal shares upon the sale of the realty. When proponent's counsel asked Pearline whether the decedent could have understood the terms of this later will, she responded "no" and stated that, in her opinion, the decedent would not have understood the terms of either will. This witness also testified that the decedent could not engage in any meaningful conversation at the time of either will. She had the subsequent will prepared because the decedent always told her that she should take care of Richard because of his disability but, otherwise, all of her children should be treated equally. Pearline believed that adding her name to the second will as a devisee would ensure that the other children would be taken care of upon the sale of the property.
The objectants called two of the decedent's grandchildren as witnesses. One, the daughter of objectant Phyllis Ford, testified that from 1980 to 1985 she traveled on business from Albany to New York City twice a month, and usually spent approximately a half week at the decedent's house on each occasion. In her opinion, the decedent had absolutely no knowledge about her assets and never left her second floor apartment after her 1979 stroke. The decedent's children took care of her shopping and finances. The decedent did not have her own checking or other bank account, and did not know what a mortgage was. Most of her conversations with the decedent were spiritual in nature. At some point, the decedent's long-time aide, Agnes, was fired by Richard, without consultation with any of the family members, and the decedent's condition markedly deteriorated after Agnes left. It was not definitively established on what date Agnes was fired, but it was definitely prior to the execution of the propounded instrument, as it was a replacement aide who acted as the third attesting witness to the instrument. In any event, this witness testified that Richard prevented Agnes from visiting the decedent after he fired her. She also testified that Richard was controlling in other ways when she came to stay with the decedent; specifically, she was not allowed to use the washing machine without his permission, and he would inspect any food brought for the decedent and decide what food could be brought upstairs to her. Upon receiving a job promotion, the witness no longer traveled for work, and did not visit or see the decedent at or about the time the will was executed.
A second granddaughter testified that after the decedent's 1979 stroke she regularly visited the decedent, usually accompanied by her mother. By 1985, they no longer were able to have any long conversations with the decedent. Although she believed that the decedent generally understood what was said to her, the decedent's responses were usually limited to "yes" or "no." She had to guess what her grandmother might want and then would ask whether she wanted that particular thing. This witness agreed with her cousin that the decedent's condition worsened after Agnes left, and thereafter, she hardly spoke.
The proponent has the burden of proving by a preponderance of the evidence that, at the time of the execution of the will, the decedent possessed testamentary capacity, and must demonstrate that the testatrix: 1) understood the nature and consequences of executing a will; 2) knew the nature and extent of the property that she was disposing of; and, 3) knew the natural objects of her bounty and her relations with them (see Matter of Kumstar, 66 NY2d 691, 692). In determining whether the decedent understood the nature and consequences of executing a will she must "have sufficient capacity to understand the scope and meaning of the provisions of (her) will" (PJI 7:48), and although "she need not have a lawyer's understanding of the will and the legal terms used in it . . . (she) must understand the plan and effect of the will" (id). Thus, for the decedent to possess testamentary capacity she is required to "know the contents of the will and appreciate the disposition of property made by it" (2 NY PJI 2d 7:48, at 1379 [2010]). Nonetheless, it is clear that less capacity is required to execute a will than a contract or any other legal document (see Matter of Coddington, 281 App Div 143, affd 307 NY 181). A testatrix does not lack testamentary capacity merely because she was suffering to some extent "the progressive deterioration of old age" (PJI 7:51) or was afflicted by weakness or disease (PJI 7:53), provided that she possessed the three elements of testamentary capacity enumerated in Matter of Kumstar ( 66 NY2d at 692).
In contrast to testamentary capacity, the objectant has the burden of proof on the issue of undue influence (see Matter of Walther, 6 NY2d 49). This burden is met by establishing, by a preponderance of the evidence, that the influence exerted amounted "to mental coercion that led the testator to carry out the wishes of another, instead of (her) own wishes, because the testator was unable to refuse or too weak to resist" (PJI 7:55). The criteria for establishing undue influence has been stated as follows:
"It must be shown that the influence exercised amounted to a moral coercion, which restrained independent action anddestroyed 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 * * * lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation" (Matter of Walther, 6 NY2d at 53-54, quoting Children's Aid Soc. v Loveridge, 70 NY 387, 394-395 [1877]).
Furthermore, it is clear that undue influence is not established by showing only motive and opportunity; instead, additional evidence must be adduced that such influence was actually exercised (see Matter of Walther, 6 NY2d at 55). Nonetheless, direct evidence of undue influence rarely takes place in the presence of other parties; and therefore, "the law permits undue influence to be shown by facts and circumstances leading up to and surrounding execution of a will" (PJI 7:55). Specifically, the facts and circumstances that the court may consider herein are the following: the testator's physical and mental condition; her contact with, or isolation from her family and friends; her knowledge and awareness of the will's provisions and whether she was satisfied with them; the opportunity that she had to obtain independent advice; her dependence, if any, upon Richard; Richard's control during her lifetime over her property and affairs; the actions taken by Richard to obtain execution of the will; Richard's whereabouts and actions at the time the will was executed; by whom the will was drafted; the presence or absence of independent counsel at the time the will was executed; the naturalness of the will's contents and their relation to the decedent's prior testamentary plan; the size of the provision for Richard in relation to the total estate left by the testatrix; and, the explanations offered by Richard for the provisions made for him in the will (PJI 7:55).
Under the circumstances where a confidential relationship exists between the testator and the beneficiary alleged to have exerted undue influence over the testator, the beneficiary "is required to offer evidence to explain the provision benefitting (him)," and the trier of the facts may, although not required to, "infer that undue influence was exercised, unless on all of the evidence in the case," the trier concludes that the testator "freely and knowingly, executed the will" (PJI 7:56). Nonetheless, as it is not unusual for a parent to make a substantial bequest to a child or for other family members to make such bequests, the fact that the testator and the beneficiary accused of undue influence are members of the same family, without more, is insufficient to establish the existence of a confidential relationship from which undue influence may be inferred (see Matter of Zirinsky, 43 AD3d 946, affd 9 NY3d 815; Matter of Camac, 300 AD2d 11). On the other hand, the law recognizes the existence of a confidential relationship between a parent and a child or other family members, permitting an inference of undue influence, where there is also evidence that the testator was dependent upon or subject to the control of the family member receiving the disproportionate legacy (see Matter of Paigo, 53 AD3d 836; Matter of Neenan, 35 AD3d 475; 2 NY PJI2d 7:56, at 1409-1410 [2010]).
Here, Richard never sought to probate the will during the approximately two-decade period that elapsed between the death of the decedent and his own death. Consequently, by the time the will was offered for probate by the fiduciary of Richard's estate, the only effective dispositive provision is paragraph SECOND (a), which disposes of the property upon Richard's death in the event that it was not sold during his lifetime. Accordingly, under the facts of this case, in reaching a determination on the issues of testamentary capacity and undue influence, it is reasonable and equitable to primarily focus upon paragraph SECOND (a) which provides that if Richard lived in the house until his death without selling it, each of the other children would receive only $5,000, while Richard's estate would own the realty which is presently worth hundreds of thousands of dollars.
The extent to which the decedent relied upon her son Richard as well as the extent to which Richard controlled her are significant factors in determining whether a confidential relationship existed between them from which undue influence may be inferred. These same factors may also bear on the issue of whether the decedent had sufficient mental ability to possess testamentary capacity. The totality of the proof adduced establishes that Richard controlled his mother's life to a significant extent. This in part flowed from the fact that he occupied the first floor of the home and controlled access to his mother as, after her stroke in 1979, she was confined to the second floor. Although Richard did not prevent family members from visiting with his mother, he apparently unilaterally decided to fire Agnes, his mother's long-time aide, and thereafter prevented Agnes from visiting his mother, even when she was accompanied by other members of the family. Two grandchildren testified that the mental capacity of the decedent significantly deteriorated after Agnes was fired. One of the granddaughters also testified that Richard also controlled what food was delivered to his mother on the second floor. Moreover, the evidence is consistent in demonstrating that after her stroke, the decedent neither took care of her financial affairs nor provided for her own personal needs. There was no evidence that after the stroke the decedent gave instructions to anyone with regard to such matters.
Richard's role in selecting the attorney-drafter, giving the attorney the instructions for the will and, presumably, paying for the legal services rendered, is further proof of the extent to which he was involved with the affairs of his mother. In short, the court finds that due to the disabilities of the decedent arising from her stroke, Richard assumed primary responsibility for all of her needs and affairs so that, in the eyes of the law, a confidential relation existed between them. This gives rise to an inference that Richard's undue influence over the decedent resulted in the provisions benefitting Richard to the exclusion of all of her other children during Richard's life and benefitting his estate over her other issue upon his death. Furthermore, no proof was adduced to explain why the decedent, who apparently had a close loving relationship with all of her children and grandchildren, would want to benefit Richard's estate and children over the other family members. Thus, it appears that the instructions that Richard gave to the attorney with regard to the testamentary scheme for his mother's estate were his scheme and not her own, as the provisions are far broader than necessary to alleviate a mother's concern that her disabled child would always have a place to live.
The opinions of the attorney-drafter and his wife, as attesting witnesses, that the decedent possessed testamentary capacity must be considered in the context that the opportunity for each of them to observe the decedent was limited to the execution ceremony which lasted approximately 45 minutes. They never had any dealings with the decedent either prior to or after that event. Neither of them knew that the decedent did not take care of her own financial affairs or instruct others with regard to her personal needs. Had the attorney been aware of those facts he might have insisted upon meeting with the decedent to ascertain her testamentary scheme instead of permitting Richard to give him the instructions over the telephone. Counsel appeared and had the will executed the day after he received the testamentary instructions from Richard. Consequently, the decedent had no time to consider whether the will accurately reflected her testamentary plan, assuming, arguendo, that she actually had a testamentary plan, nor did she have the opportunity to discuss the provisions of the will with anyone other than the person who took the instructions from the principal beneficiary under the will.
The attorney and his wife both, at least to some extent, appeared more confident that the decedent had testamentary capacity because of the involvement of her aide as a third attesting witness. They might not have been as impressed by this fact had they known that this aide replaced Agnes, a long-time aide, and that the condition of the decedent, whether by chance or cause and effect, appeared to other witnesses to significantly deteriorate after Agnes was discharged by Richard. It appears from their testimony that the most significant factor that resulted in the attorney and his wife reaching the conclusion that the testatrix possessed testamentary capacity was that when the attorney asked her why she favored Richard over her other children, the testatrix responded that it was because he was crippled. This answer was clearly responsive to the question posed; however, it in no way establishes that the testatrix was aware of, or understood, any of the specific provisions in the will. The attorney never asked the testatrix to tell him in her own words how she wanted to dispose of the property in the event that it was not sold during Richard's lifetime. Nor did counsel explore other options with the testatrix; for example, granting Richard a life estate or placing the home in trust for Richard's benefit during his lifetime. Reading the provisions of the will to an unsophisticated, disabled, elderly woman who did not take care of her own affairs, and hearing her answering yes to the question of whether she understood that provision and whether it reflected her wishes, is not sufficient to establish testamentary capacity under all of the facts of this case.
The attorney conceded that it was highly unusual for him to take instructions from the principal beneficiary and then, without any prior discussions with the testator, present the will to the testator for execution the following day. Although the court does not find that the attorney in any way proceeded in bad faith or that he and his wife did not express their honest opinions on the issue of testamentary capacity, it is clear that the attorney followed ill-advised procedures in the preparation and execution of the will. Apparently, he did not have enough information about the decedent and her relationship with family members to even know what questions he should ask, or what avenues he should explore, first, to determine whether the testatrix had the capacity to execute any will, and, if she did have the requisite capacity, whether the will he prepared at the request of Richard truly carried out his client's testamentary desires. Unfortunately, counsel mostly posed questions requiring a yes or no answer and made no effort to explore other alternatives to provide for Richard if, in fact, that was her desire. Consequently, the court cannot give the same weight to counsel's testimony on the issue of testamentary capacity as would be afforded to the opinion of an attorney attesting witness who knew his client or at least heard the client's testamentary plan from the client's own lips.
The testimony of decedent's daughter, Pearline, buttresses both the conclusion that the decedent lacked testamentary capacity and that the will was the product of undue influence exerted upon the decedent by Richard. No proof was adduced to establish that the December instrument Pearline caused to be drafted and executed was a valid will. Nonetheless, her testimony does clearly establish that months after Richard played a pivotal part in the preparation of the propounded will benefitting him and his family over other children and grandchildren, Pearline followed the exact same script to obtain a different result; i.e., she related to an attorney a testamentary plan for her mother and that attorney drafted a will under which Pearline joined Richard as a principal beneficiary. Her actions, even more so than her testimony about her mother's mental capacity, prove that she proceeded with obtaining the will she wanted her mother to sign on the premise that her mother would not understand its provisions but would execute it if requested to do so by one of her children.
Based on all of the proof adduced, the court finds that the proponent failed to meet his burden of proof on the issue of testamentary capacity. The court also finds that the objectants established the existence of a confidential relationship between the testatrix and Richard and that this confidential relationship, coupled with the facts and circumstances surrounding the preparation and execution of the propounded instrument favoring Richard and his estate, create the inference that the instrument was a product of undue influence exerted by Richard over his mother. Furthermore, the proponent failed to present evidence to overcome the inference of undue influence.
Accordingly, this decision constitutes the decree of the court denying probate to the propounded instrument. The Chief Clerk is to mail a copy of this decision and decree to all attorneys and to each pro se litigant. All attorneys and the members of the family who so desire shall appear at room 406, 851 Grand Concourse, Bronx, New York on January 5, 2011 at 9:30 a.m. to discuss the future administration of the estate.