Opinion
No. 2020-2136/E
07-12-2022
In the Matter of the Estate of Gordon Ewing, Deceased.
HURLEY, HEWNER & GAMBINO, P.C. Attorneys for Petitioner/Executor Nancy Ewing Thomas F. Hewner, Esq. of Counsel VOELKL LAW, P.C. Appearing for Claimant Gail E. Burns Jeffrey T. Voelkl, Esq. of Counsel THOMAS D. MIGLIACCIO, ESQ. Appearing as Guardian ad Litem for Minor Beneficiaries
Unpublished Opinion
HURLEY, HEWNER & GAMBINO, P.C.
Attorneys for Petitioner/Executor Nancy Ewing
Thomas F. Hewner, Esq. of Counsel
VOELKL LAW, P.C.
Appearing for Claimant Gail E. Burns
Jeffrey T. Voelkl, Esq. of Counsel
THOMAS D. MIGLIACCIO, ESQ.
Appearing as Guardian ad Litem for Minor Beneficiaries
HON. ACEA M. MOSEY, SURROGATE JUDGE
Gordon Ewing [hereafter, decedent or Gordon] died on September 24, 2019. He was survived by his wife, Rebecca Burns-Ewing [hereafter, Rebecca], who died on May 5, 2020, and by three grandchildren from a prior marriage. Decedent's September 19, 2019 Will was offered for probate on July 7, 2020, by Nancy Ewing [hereafter, Nancy], decedent's sister and the nominated executor in that Will. The Will was admitted to probate by this Court on September 16, 2020, and letters testamentary were issued to Nancy the same date. The only assets of the estate were the net proceeds of a personal injury action stemming from a 2012 action in which Gordon had been injured but which was apparently not finally resolved until after his death.
Decedent's Will provided that Rebecca should receive 25% of Gordon's estate in trust during her life. The Will also provided that the trustee should apply so much of the principal and net income from the trust as the trustee deemed necessary or proper to provide for Rebecca's "comfortable support and maintenance during the lifetime of my wife". The balance of the estate was left in trust to decedent's minor grandchildren in equal shares. Nancy was nominated as trustee of all the trusts.
The Will also provided that, upon Rebecca's death, the trustee was to "take all principal and any accumulated interest" and add it to the trust(s) for each of the grandchildren "in equal shares".
By petition verified March 19, 2021, Nancy seeks to judicially settle her final accounting and close out this estate. The accounting shows $600,000 in gross estate assets, all stemming from the 2012 accident litigation. Net settlement proceeds amount to approximately $277,485 and are available for distribution pursuant to the Will, with the accounting showing distributions to be made only to the trusts for Gordon's grandchildren.
Nancy's accounting lists $102,075.31 in unpaid administration costs and debts of the estate. Of that amount, $64,214.18 is a claim against Gordon's estate filed by Gail Burns [hereafter, Gail], Rebecca's mother and the sole distributee and fiduciary of her estate. Nancy has rejected Gail's claim in its entirety and allocates all net estate proceeds equally to the three testamentary trusts for decedent's grandchildren. Gail has filed an objection, verified November 11, 2021, to Nancy's accounting (as amended).
Gail's claim against the estate seeks reimbursement to her for $64,214.18 which she asserts she expended for Rebecca's "comfortable support and maintenance" over the eight months following Gordon's death in 2019 until Rebecca died in May, 2020, as well as for certain expenses incurred and paid by Gail after Rebecca's death. That claim is broken down as follows:
“Rebecca Burns-Ewing Expenses:
| Rent | $800.00 per mnth | 9 months | $7,200.00 |
| Funeral | $7,550.00 | ||
| Car Repair | $364.00 | ||
| Car Insurance | $130.00 per mnth | 9 months | $1,170.00 |
| Rite Aid co-pays | $243.83 | ||
| Wound Care | $ 208.00 per mnth | 9 months | $1,872.00 |
| Eviction Exp | $300.00 | ||
| Personal Items take from storage locker | $4,000.00 | ||
| Milage | 2436 miles | 0.58 per mile | $1,412.88 |
| Haircuts | $60.00 | 4 | $240.00 |
| Phone | $30.00 | 9 months | $270.00 |
| Clothes | $80.00 | 9 months | $720.00 |
| Food/Ensure | $100.00 | 9 months | $900.00 |
| Daily Aid $4,791.00 | $157.00 per day | 223 days | $ 35,011.00 |
| Legal Fee for estate appointment | $2,500.00 | ||
| Disbursements for estate | $460.47 | ||
| Filing Fee for administration | $289.09 | ||
| Short forms | $24.00 | ||
| Postage/Handling | $50.00 | ||
| Return/Receipt to Surrogate's Court | $7.38 | ||
| Process Server | $90.00 | ||
| Grand Total | $64,214.18" |
Gail asserts in her claim that Rebecca:
"was a profoundly sick individual at the time of [Gordon's] death until her own death She was physically, medically, financially, and mentally incapable of commencing a petition for Administration of [Gordon's] estate. She was evicted and forced to vacate the marital residence due to unpaid rent. I had to take Rebecca in, pay her rent, pay her bills, pay her medical bills, take her to all doctor appointments, take her to the hospital, feed her, provide her with shelter, medical care, wound care, pain management, and funeral arrangements and expenses etc.
Rebecca needed 24 hour - round the clock care, but she could not afford it, so she and I agreed I provided her with the funds and care she needed. Rebecca in turn agreed to pay me for the care I provided, and reimburse me for all expenditures I made on her behalf with the funds she would receive from Gordon's lawsuit. With this agreement made between Rebecca and me, I provided Rebecca with round the clock care and everything she needed for her comfortable support and maintenance from September 24, 2019 until Rebecca died on May 5, 2020. Rebecca was totally insolvent when she died and only had $0.17 cents to her name. Because she could not prepay for her funeral, I was left with the task of paying for her funeral and all funeral arrangements."
Gail also contends that all the claimed expenses "should have been paid by the funds Rebecca would have inherited from her predeceased husband's estate."
In rejecting Gail's claim, the estate argues that (a) there is no signed writing memorializing the supposed agreements Gail refers to, (b) New York's Deadman's Statute (CPLR 4519) would prohibit Gail from testifying about such an oral agreement, and (c) Gail cannot, therefore, overcome the presumption that the care provided to Rebecca was undertaken out of love and affection rather than as a service to her daughter in exchange for compensation.
Pending now before me is a motion by Nancy seeking summary judgment dismissing Gail's claim and thereafter approving her accounting. Gail opposes that motion. The guardian ad litem [hereafter, the GAL] appointed by me to represent the interests of Gordon's minor grandchildren has filed his report supporting dismissal of Gail's claim and recommending approval of Nancy's accounting.
The motion having been finally submitted, I now find and decide as follows.
(a)
Procedurally, the law governing the motion now before me is simply stated:
"It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Thus, '[a] party moving for summary judgment must demonstrate that "the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment" in the moving party's favor' (Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014], quoting CPLR 3212 [b]). 'This burden is a heavy one and on a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party"' (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013]), 'and every available inference must be drawn in the [non-moving party's] favor' (De Lourdes Torres v Jones, 26 N.Y.3d 742, 763 [2016]). If the moving party makes a prima facie showing, 'the burden then shifts to the non-moving party to "establish the existence of material issues of fact which require a trial of the action"' (Jacobsen, 22 N.Y.3d at 833)" (Williams v. Beemiller, Inc., 159 A.D.3d 148, 152 [2018]; see also Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488 [2019] and Omar v. Moore, 196 A.D.3d 1182, 1183 [2021]).
(b)
In Matter of Wilson, 178 A.D.2d 996 [1991], decedent's son filed claims against his mother's estate for caretaking services which he allegedly rendered to her during the last years of her life. Following an evidentiary hearing before a referee, this Court [MATTINA, J.] found that all claims had been established. On appeal, our Appellate Division reversed, concluding that the son had failed to establish, by clear and convincing evidence, that the son's services to decedent had not been rendered "in consideration of love and affection, without expectation of payment" (at 997).
An earlier decision from our Appellate Division is also instructive. In Matter of Van Zandt, 231 A.D. 382 [1931], a daughter successfully brought a claim against the estate of her mother's predeceased husband. Under the husband's Will, funds were allocated for the "care, support, and maintenance" of his wife, and the Will provided that, in the event that the estate income should be insufficient for the wife's "care, support, and maintenance," so much of the rest of the estate as the fiduciaries "deem necessary for that purpose" (at 386) should be expended. When the husband died, his wife went to live with her daughter. The wife survived her husband by 16 months and received no money from his estate during this time except for a small sum paid to her the day that she died. During that 16 month period, the wife had used her own monies for medical bills, nurses, medicine, clothing purchases, and other costs related to her care. The fiduciary of the wife's estate, her daughter, filed a claim against the husband's estate for amounts expended by the wife after her husband's death but not reimbursed to her by the husband's estate. Our Appellate Division found that the wife's estate was entitled to be reimbursed for the difference between what the wife had expended for her care and maintenance and what she had received from her predeceased husband's estate, noting that such reimbursement related to the "care, support and maintenance" of the wife following the predeceased husband's death. However, the Appellate Division declined to allow the claim for the post-deceased wife's funeral expenses because those expenses were not items which fit within the provision related to the "care, support and maintenance" provision of the husband's Will.
Here, I initially conclude that Gail's claim for Rebecca's funeral expenses is not cognizable given the terms of Gordon's Will. The "comfortable support and maintenance" provision for Rebecca in Gordon's Will is qualified and limited to such expenses "during her lifetime". Clearly, Rebecca's funeral expenses, as well as any expenses incurred after Rebecca's death, fall outside the scope of the Will. Thus, to that extent, the claim is dismissed.
As to all other aspects of Gail's claim, there must be an evidentiary hearing at which Gail will have the burden of establishing, by clear and convincing evidence, if she can, that any monies expended by her on Rebecca's behalf following Gordon's death were expended not out of love and affection but rather with a grounded, reasonable expectation of repayment. Gail will have to rebut the presumption" 'by clear and convincing evidence that there was an agreement - whether express, implied in fact, or implied in law'" (Matter of Curtis, 83 A.D.3d 1182, 1183 [2011], quoting Matter of Barr, 252 A.D.2d 875, 877 [1998]).
With respect to the issue of proof, Gail has urged that, because she filed her claim initially in Rebecca's estate and that no opposition to the claim was filed there, the claim is taken as established in all its particulars. The GAL correctly points out that, because Gail is both fiduciary of Rebecca's estate and claimant against it, the lack of objection in Rebecca's estate to the claim is legally irrelevant because, in the fiduciary-claimant situation, SCPA 1805(1) "requires that the claim be proven and allowed by the court in a judicial settlement proceeding." Because there has been no such approval of the claim by this Court in Rebecca's estate, the claim cannot be taken as established and allowed at this point in Gordon's estate.
I direct that such hearing shall take place before the Chief Attorney of this Court, on a hear and report basis, and I further direct that counsel shall appear before me on Wednesday, August 3, 2022, at 9:30 a.m. to set the date for that hearing and schedule any pre-hearing matters which may be required.
This decision shall constitute the Order of this Court and no other or further order shall be required.