Opinion
95038/05.
Decided on April 18, 2007.
John C. Gifford, Esq., Van DeWater Van DeWater, LLP, Attorneys for Preliminary Executrix, Poughkeepsie, New York.
Sara Jane Gulbrandsen, c/o Vincent L. Teahan, Esq., Teahan Constantino, Esqs., Millbrook, New York.
Trinity United Methodist Church, Lagrangeville, New York.
Angela Wildrick, Poughquag, New York.
Judy Beahan, Poughkeepsie, New York.
James Bracken, Keeseville, New York.
Demarest Methodist Church, Demarest, New Jersey.
Debbie Beattie, Lagrangeville, New York.
Judy Sulsky, Hopewell Junction, New York.
Sonja Romano, Sale Creek, Tennessee.
Rita Bracken, Keeseville, New York.
George Basler, Madison, Connecticut 06443.
Steven Basler, Madison, Connecticut 06443.
Christine Basler, c/o Robert B. Dietz, Esq., Dietz Dietz, LLP, Poughkeepsie, New York.
Michael Basler, Madison, Connecticut 06443.
Jennifer Basler, Madison, Connecticut 06443.
Amy C. Karp, Esq., Assistant Attorney General, New York State Department of Law, Charities Bureau, New York, New York.
This petition filed by Laura Klinski ("Klinski"), preliminary executrix for an order (1) admitting the last will and testament of Rudolph G. Gulbrandsen to probate and issuing permanent letters testamentary to Laura Klinski, (2) determining Sara Jane Gulbrandsen's interest in all joint property owned by herself and Rudolph G. Gulbrandsen, (3) determining whether Sara Jane Gulbrandsen has forfeited her interest in the decedent's estate, (4) determining whether Sara Jane Gulbrandsen is entitled to receive the proceeds of any property owned by the decedent of which she is designated the primary beneficiary and (5) directing Edward Jones and Prudential Financial to provide account statements, beneficiary designations and all other relevant information on any account in which the decedent had an interest to Laura Klinski, as executor, or to her representatives(s); cross-application by Christine Basler ("Basler"), the decedent's daughter, for an order appointing an independent person as Administrator, CTA to pursue a wrongful death action and claim for loss of value of real property and additional expenses incurred by the estate against Sara Jane Gulbrandsen, are resolved as follows.
The only parties participating in these competing petitions are Klinski, Basler and counsel for the decedent's spouse.
BACKGROUND
The decedent died testate on December 18, 2005. The will offered for probate is dated May 14, 2003.
The decedent's spouse, Sara Jane Gulbrandsen, was indicted and charged with murder in the second degree (Indictment No. 09/06) in causing the death of her husband with a metal rod. She subsequently pled guilty to first degree manslaughter, a B felony, in violation of Penal Law § 125.20(2). The statute provides:
"A person is guilty of manslaughter in the first degree when:. . .
2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision;. . ."
Sara Jane Gulbrandsen was sentenced to a definite term of
incarceration of six (6) years plus five (5) years post release supervision on October 3, 2006. She is currently serving her sentence. The court has reviewed the transcript of the minutes of the underlying guilty plea. ( Matter of Savage, 175 Misc 2d 880, 882 [Sur. Ct., Rockland Cty. 1998). The estate shall bear the cost of ordering the transcript in the first instance.
THE WILL
The decedent leaves his entire estate to Sara Jane Gulbrandsen and appoints her primary executrix. There are a series of contingent specific monetary bequests, a contingent legacy relating to tangible personal property and contingent residuary beneficiaries. Basler is both a contingent legatee and residuary beneficiary. Klinski is nominated as successor executrix. Sara Jane Gulbrandsen previously filed a renunciation of her appointment as primary executrix. The court granted the petition for preliminary letters testamentary filed by Klinski over the objection of Basler in a decision and order, dated April 5, 2006.
Basler does not oppose the probate of the propounded instrument, dated May 14, 2003. She continues to object to the appointment of Klinski as executrix for essentially the same reason articulated in her opposition to the issuance of preliminary letters, namely, a potential conflict of interest due to Klinski's friendship with the now convicted spouse. Basler joins with Klinski in the relief she seeks on the issue of forfeiture.
The law is settled that a potential conflict of interest between a fiduciary and a party interested in the estate does not warrant the denial of letters to or the removal of a fiduciary. ( Matter of Shepard, 249 AD2d 748, 749 [3rd Dept. 1998].) It is actual misconduct and not the conflict of interest that justifies removal. ( Matter of Marsh, 179 AD2d 578, 580 [1st Dept. 1992].)
Moreover, a testator's selection of a fiduciary must be given great deference. The Surrogate's power to refuse to grant letters is limited by statute. The grounds for the Surrogate declining to issue letters are limited to those specifically set forth in SCPA §§ 707 and 711. ( Matter of Marsh, supra, pg. 580.) Basler has not provided any probative facts to declare Klinski ineligible under either cited statutory section. No hearing is required, and Basler's objection is dismissed. ( Matter of Goulden, 41 AD2d 684, 685 [4th Dept. 1973]; Matter of Marsh, supra, pg. 580.) The will is admitted to probate, and full letters testamentary may issue to Laura Klinski upon qualifying pursuant to law.
Basler's request that the fiduciary pursue a wrongful death action and claim for loss of value of real property and additional expenses incurred by the estate against the felonious spouse may be revisited, if appropriate, at the time Klinski files her account.
FORFEITURE
The decedent's only individually owned assets consist of Series"E" Savings Bonds valued at $54,000.00 and tangible personal property, with a gross appraised value of $2,668.00. Joint assets with Sara Jane Gulbrandsen include bank accounts and the former marital residence located at 114 Carter Road, Pleasant Valley, New York. The residence was sold with leave of the court on March 14, 2007. The net sum derived was $338,447.03. Assets with a named beneficiary are an individual retirement account and several life insurance policies.
Established case law states that a wrongdoer cannot profit from his or her own wrong and is barred from inheriting from the person slain. ( Riggs v. Palmer, 115 NY 506, 511; Matter of Alexis, 14 Misc 3d 379, 380 [Sur. Ct., Nassau Cty 2006].) However, this equitable doctrine does not trump the public policy embodied in Civil Rights Law § 79-b as a means of effecting a proprietary forfeiture of a vested property interest. That statute provides, in relevant part, that"[a] conviction of a person for any crime, does not work a forfeiture of any property, real or personal, or any right or interest therein." (Civil Rights Law § 79-b).
Since the decedent died as a direct result of his spouse's actions, the rule in Riggs nullifies any and all bequests by him to her. ( Matter of Covert, 97 NY2d 68, 74.) The contingent legatees shall receive those testamentary gifts. All unexpended cash passes directly into the residuary for distribution to the alternate beneficiary. ( Matter of Covert, supra, pgs. 74-75.)
The individual retirement account and life insurance policies shall pass to their alternate beneficiaries. ( Matter of Covert, supra, pg. 76.) If none are named, they too shall pass through the residuary clause of the decedent's will.
JOINT PROPERTY WITH RIGHT OF SURVIVORSHIP
The joint bank accounts shall be divided evenly, half passing through the decedent's estate and half to Sara Jane Gulbrandsen. ( Matter of Covert, supra, pg. 76.)
In Matter of Mathew, 270 AD2d 416 [2nd Dept. 2000], the appellate division for this judicial department adopted the"commuted life estate" doctrine with respect to real estate owned as tenants by the entirety. In acknowledging the applicability of Civil Rights Law § 79-b, the court determined that a surviving tenant may not have property rights diminished by reason of the commission of a criminal act. The survivor is therefore entitled to the commuted value of a life estate in one-half of the property or the proceeds of the sale. ( Matter of Mathew, supra, pg. 417.) Since the real estate has been sold, the calculation would be one-half of $338,447.03.
The holding in Matter of Mathew is at odds with Matter of Pikul, 192 AD2d 259 [1st Dept. 1993] and Bierbrauer v. Moran, 244 AD 87 [4th Dept. 1935].) These decisions hold that the killer forfeits all rights in the real property. ( Turano, Supplementary Practice Commentaries, McKinney's Cons. Law of NY, Book 17B, EPTL § 4-1.6, at 146.)
WRONGFUL DEATH ACTION
The determinations set forth in Matter of Covert and Matter of Mathew, supra, provide guidance with respect to the disposition of jointly owned property and real estate owned as tenants by the entirety when forfeiture is at issue. However, the executrix retains the option to pursue a wrongful death action against Sara Jane Gulbrandsen grounded in EPTL § 5-4.1 for the benefit of the sole distributee, Christine Basler, and a personal injury action under EPTL § 11-3.2 for the benefit of the decedent's estate. They may be combined pursuant to EPTL § 11-3.3(b). (9 Warren's Heaton on Surrogate's Court Practice, 7th ed., § 124.03[1][c].)
Generally, a wrongful death action must be commenced within two (2) years of the decedent's death. (EPTL § 5-4.1.) However, since the event that caused Rudolph G. Gulbrandsen's death resulted in criminal action against his spouse, the statute of limitations is tolled for one year following the resolution of the criminal action. (EPTL § 5-4.1.) This is so notwithstanding that the time in which to commence such an action has already expired or has less than a year remaining. (EPTL § 5-4.1.) Thus, the executrix here will be able to"use a criminal judgment of conviction as proof of facts asserted in civil court (the doctrine of collateral estoppel)" to recover the share of jointly owned assets of Sara Jane Gulbrandsen. ( Turano, Practice Commentaries, McKinney's Cons. Laws of NY, Book 17B, EPTL § 5-4.1 at 308 quoting Memorandum in Support, reprinted in [1983] NY Legs. Ann. 61.)
ACCOUNT INFORMATION
This request is premature. Laura Klinski, as executrix, shall have the full array of powers set forth in EPTL § 11-1.1 available to her, as well as the SCPA and CPLR.
REFORMATION OF WILL
While not specifically requested by either Klinski or Basler, the parties have stipulated to the correction of the mathematical error in Article SIXTH of the propounded instrument.Accordingly, branches (1) through (4) of the petition in chief are granted as set forth in this decision. Branch (5) is denied. The cross-petition is denied with respect to the request for the appointment of a third party to serve as Administrator CTA. The issue of maintaining an action for wrongful death against Sara Jane Gulbrandsen has been addressed.
Counsel for Laura Klinski is directed to submit a decree consistent with the foregoing within ten (10) days of service of a copy of this decision.
The foregoing constitutes the decision of the Court.