Opinion
No. 2021-1143/B
02-27-2023
In the Matter of the Estate of Peggy N. Miller, Deceased.
MAGAVERN MAGAVERN GRIMM, LLP Appearing for Petitioner, Olga Melkozerova Thomas J. Lang, Esq. of Counsel
Unpublished Opinion
MAGAVERN MAGAVERN GRIMM, LLP Appearing for Petitioner, Olga Melkozerova
Thomas J. Lang, Esq. of Counsel
HON. ACEA M. MOSEY Surrogate Judge
Decedent died at age 64 on July 25, 2020 in Millard Fillmore Suburban Hospital, Amherst, New York, where she had been an in-patient since July 10, 2020. Decedent had never been married or had any children, and she was survived by her father, Albert Miller [hereinafter, Albert], and her brother Daniel Miller.
Decedent left a Will, dated July 24, 2020, which nominated a friend and co-worker, Olga Melkozerova [hereinafter, Olga], as executor of her estate. The Will left decedent's entire estate to Olga.
By petition filed February 25, 2021, decedent's father, Albert, sought to deny probate to decedent's Will:
"I believe the testator lacked the testamentary capacity to execute such a document, as she was suffering from the end stages of cancer and died the day after the alleged execution. As a result, the alleged instrument was procured as a result of fraud and/or undue influence."
However, by letter from Albert's attorney dated June, 23, 2021, and for reasons unexplained in that letter, Albert withdrew his petition "at this time".
Olga then filed a petition in August, 2021, asking this Court to admit decedent's July 24, 2020 Will to probate . Only one proof of Will was filed, that from Marcus Bursik [hereafter, Marcus], who stated that, when he signed as witness to the Will's execution on July 24, 2020:
Although duly cited, Albert did not appear in Olga's proceeding.
"I saw the other witness Jim Pham's signature also on the document. I did not personally witness Jim Pham sign the document because the Decedent was an inpatient in a hospital and only one visitor was allowed in the room at a time."
As Olga's probate proceeding moved forward, this Court was advised that the second Will witness "refused to sign" an affidavit of attesting witness. Under the circumstances, this Court set the probate issues down for an evidentiary hearing before one of its court attorneys, on consent of Olga's attorney and on a hear and report basis, and issued subpoenas to both witnesses for them to appear to give testimony about the execution of decedent's July 24, 2020 Will.
Following the evidentiary hearing, Olga filed a memorandum of law in support of her request to admit decedent's Will to probate. The matter having been finally submitted, I now find and decide as follows.
(I)
SCPA 1408, subdivision 1, requires that, "before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution" (emphasis added). And, significantly, a Court
"must be satisfied that the will was duly executed (SCPA 1408), even if no interested party filed any objections to the validity of the will (SCPA 1408; see, Matter of Zurkow, 74 Misc.2d 736, 739-740). The proponent of the will has the burden of proving due execution by a preponderance of the evidence (see, Matter of Tully, 227 A.D.2d 288; Matter of Watson, 37 A.D.2d 897). Among the requirements of due execution is that the testator publish to the attesting witnesses that the document was his or her will (EPTL 3-2.1)" (Matter of Pirozzi, 238 A.D.2d 833, 834 [1997], emphasis added; see also, Matter of Eshagian, 54 A.D.3d 860, 862 [2008] and Matter of Weissler, 2015 NY Misc. LEXIS 3623, 2015 NY Slip Op 31845[U]).
As another Court has expressed it, valid execution requires a Court to be satisfied that
"'the mind of the testator accompanied the act, and that the instrument executed speaks his [or her] language and really expresses his [or her] will' (Rollwagen v. Rollwagen, 63 NY 504, 517 [1876]; accord Matter of Watson, 37 A.D.2d 897, 898 [1971]; see Matter of Minervini, 297 A.D.2d 423, 424 [2002]; Matter of Salvan, 132 A.D.2d 662, 663-664 [1987]; Matter of Simone, 53 Misc.2d 314, 317 [1967]; Matter of De Castro, 32 Misc. 193, 194 [1900]" (Matter of Walker, 124 A.D.3d 970, 971-972 [2015]).
(II)
At the evidentiary hearing, both Will witnesses testified.
Jim Pham [hereinafter, Jim], who had declined to sign a proof of Will, explained that he had worked with decedent at M & T Bank "on the same team" and that he saw her "every day", including outside the workplace. He referred to decedent as "my friend." Jim also knew Olga, who "also worked with the same department, with us." Jim said he believed decedent and Olga "were good friends."
Jim was also asked about decedent's relationship with her family:
"Q. Did Peggy ever talk with you about her family?
A. Yes.
Q. What did she talk about?
A. She's not happy with her step mother. That basically she talked a lot about her dad, how she loved him and her brother down in Carolina, I think or somewhere. That they go vacation together all the time."
On July 24, 2020, Olga called Jim and asked him to go to Millard Fillmore Suburban Hospital to see decedent :
Jim knew decedent had cancer, and had been helping her out at her request by mowing her lawn over the 3 months previously.
"Q. And how did you come to travel to the hospital?
A. Olga called me and asked me to come and see Peggy.
Q. Did Olga ask you anything else, at that time ?
A. She asked me to witness the will.
Q. And did you arrive at the hospital?
A. Yes. I did.
Q. And approximately what time?
A. I know it was in the afternoon. I would say around 3 or 4, maybe.
Q. Did you meet anyone at the hospital?
A. I met Olga and I met another gentleman that Olga also had brought with her.
Q. Are you aware of the other gentleman's name?
A. No.
Q. And where did you meet those two individuals?
A. In front of the hospital.
Q. What did you do next?
A. I went in to see Peggy.
Q. And did you go with anyone to see Peggy?
A. No.
Q. Did you speak with Olga or the other gentleman, before you went to see Peggy?
A. Yes. And also after.
Q. What did you talk about?
A. She had asked me to see her if you can witness the will, and sign the will and come back down.
• • •
Q. Why did only you travel to Peggy's room?
A. Because I believe it was the pandemic and they only allow one person in at a time.
Q. And, when you arrived at Peggy's room, where was Peggy?
A. She was on her bed, on the bed" (emphasis added).
Jim then explained what took place after he went into decedent's hospital room:
"Q. How did Peggy look?
A. Not well.
Q. Why do you say that?
A. When I saw Peggy, she knew who I was. She said that that's Jimmy, which is what she called me. And I asked her how she was feeling. And she started mumbling something I couldn't understand what she said. And then she said I'm going to die. And I didn't know what to say. And I just said no, you're not going to die. The doctor will make you feel better. Did you want me to go on or stop?
Q. Please go on.
A. Okay. And then there was an envelope that Olga told me that the will was inside. And I took it out and I look up at Peggy, is this what you want to do? And she, at that time her eyes were closed. Then I - she was kind of like passed out, I guess. I don't know. Because of the medicine that she had on. So I just signed it and I left.
Q. Did you speak with Peggy about the document before you signed it ?
A. No. I tried to ask her - well, I take that back. I asked her if this is what she wanted to do, but as I see that she can't, she was like fell to sleep. I don't think she heard what I said.
Q. Did you ask her again ?
A. Yes. I think I asked more than one, yes.
Q. And did she give a different response the next time ?
A. No. she was gone. She was, yea, medicated or whatever that was. Yeah.
Q. When you say she was medicated, what's your basis for that?
A. I know that she was dying. She was going to die very soon, so I'm going to assume that they heavily medicated her. That may affect her function to talk to me and things like that. I don't know" (emphasis added).
Jim explained why he signed the document that he found inside the envelope beside decedent's hospital bed:
"A. I signed it because I believed that might be what Peggy wanted, even thought [sic] I couldn't get her to tell me that she wanted it because she was so far gone. So no, that's why I signed it, okay? But I also know that this is not an official document until it is notarized by the notary public. Yeah.
Q. Now, before you signed the document, is it your testimony that Peggy did not sign?
A. Peggy? No, Peggy did not sign that, no. Not while I was there, no.
Q. After you signed, while you were in Peggy's presence, did she, in any way, acknowledge that the document was a will ?
A. No.
Q. Was she, in your own words, was she, did she appear to be sleeping at the time you were in the room?
A. Yes.
Q. And, other that what you've testified before, did you attempt to wake her up?
A. No, no. I did not. I - well, actually yes. I said Peggy. I called her name, but she did not.
Q. I'm sorry, what did she do?
A. And she did not wake up.
Q. And what did you do after that?
A. I signed it and I left.
Q. Did you take the document with you?
A. No.
Q. Where did you - what did you do with thocument ?
A. I left it where it was when I first got there" e d(emphasis added).
Finally, Jim explained what took place after he left decedent's hospital room and went back downstairs where Olga was waiting:
"Q. And did you speak with Olga when you came back down from the room ?
A. Yes. I did.
Q. And what did you talk about?
A. This is very important so I remember it vividly. I asked Olga why did she wait so long when Peggy This should have been done weeks ago. And what gets to me is what Olga said. And Olga, I am sorry, but I can not testify to this document, okay? What Olga tell me is that she had, she, Olga, had to make some changes to it. And then she had to wait for it to print out from OfficeMax. And, when she said that, I just can't be a witness to this document any more. And she asked me to get it notarized. I said I just couldn't do it. I'm sorry.
Q. What, what changes did she say -
A. She did not say what changes she did. But I mean, if this is the last will and testament from Peggy, and then Olga made changes to it, I just can't be a - I'm sorry" (emphasis added).
Marcus also testified at the evidentiary hearing. He said he knew decedent from the church they both attended, but that he didn't know her "really well, but a little bit". He also knew Olga from the same church.
On July 24, 2020, Olga asked him to go to Millard Fillmore Suburban Hospital, "to come about Peggy's Will." When he arrived in the hospital lobby, he met Olga and a co-worker of decedent's:
"Q. And what happened next?
A. Let's see. I got to the hospital. They were already in the lobby. And we waited there for a while. And then a nurse came and we asked the nurse if we could go up to witness the will. But the nurse was real adamant about only one person was allowed in the room at a time Peggy. It was during Covid, you know, and that's close to the start of Covid, so they were really strict about that. And so, so the nurse said that only one of us could go up there at time, even though we knew were supposed to go up, you know, you're suppose to have two people there. So eventually we decided Jim would go up and then I would go up. So then Jim went up."
Marcus "thought" that Jim had the Will with him in his hand when he came down from decedent's hospital room, and that he - Marcus - took the document back upstairs with him when "it was my turn". Marcus said decedent was "awake" when he got to her room:
"Q. What did you talk about?
A. I little bit of this and that, but then she did start to talk about being afraid and a couple of people in church that had, her and Olga had had a disagreement with. And so she was a little bit focused on that, for a little bit.
Q. Did you observe Peggy while you were communicating with her?
A. Yeah.
Q. Based on your observation, did she appear to understand the conversation you were having.
A. Yes. She did, I would say, but she had trouble, she had things that were on her mind, you know, and she really wanted to talk about. At the same time, she had difficulty, which I thought was motor, just motor difficulty in speaking and things like that. She would repeat things.
Q. Was she responsive to your questions?
A. Yes.
Q. Based on your observation, did you believe Peggy was lucid?
A. I believe she was lucid, but I believe she was having trouble getting out, you know, using her tongue and using her hands adeptly, as we usually do.
• • •
Q. And, when you arrived in Peggy's room, where was the will?
A. Well I think I brought it up, so I think I brought up. I might be wrong about that, but I think I brought and I guess we had it on the little side table that, you know, they always have next to the hospital beds. The rolly table.
Q. And, at that time, then you began speaking with Peggy. When you were done speaking with her, what happened next ?
A. Yeah, I said okay, here's your will. We're going to sign it. And we turned to the last page and I pointed, I guess I pointed out where she needed to sign it. And she signed it. She signed it three times. And then, and then I signed it, in the room, together.
Q. When you said to Peggy that we're going to sign the will, did she acknowledge that?
A. Yeah.
Q. Did she specifically say the word will?
A. No, I don't, I don't remember her saying that.
Q. Based on your observation, did Peggy know that she was going to executing a will?
A. Yeah.
Q. Why did she sign three times?
A. I thought that was just related to this motor problem that she had, you know, not realizing she was repeating motions, you know? So I think that's, I thought that's why she did it. But, obviously I'm not in her brain, so I don't really know. But that was my speculation.
• • •
Q. Did you sign after Peggy did?
A. Yes, I did.
Q. And did Peggy ask you to sign ?
A. No, I think it was difficult for her to think of questions at that time, probably. But no, I signed and, you know, showed her I was signing or told her I was signing" (emphasis added).
After he and decedent signed the Will, Marcus took the Will downstairs with him and gave it to Olga.
(III)
As this Court pointed out in Matter of Cher, 2022 NY Misc. LEXIS 2718, 2022 NY Slip Op 50524 (U) [dec. June 8, 2022], with respect to "due execution" of a Will:
"A testator must sign the Will at its end (EPTL 3-2.1[a] [1], and must sign in the presence of at least two attesting witnesses or acknowledge his or her signature to each attesting witness separately (EPTL 3-2.1 [a] [2] and [4]). The testator must also at some time during the execution ceremony declare that the instrument being signed is his or her Will (EPTL 3-2.1 [a] [3]. "
Here, the Will was unexecuted by decedent when Jim signed the document as a "witness", and Marcus made clear in his testimony that decedent did not sign the document until after Jim had done so and after Jim had left decedent's hospital room.
Furthermore, and contrary to Olga's post-hearing brief, there is no evidence of "substantial compliance" with the due execution requirements. Decedent was "asleep" when Jim took the document out of the envelope on decedent's hospital bedside table, and he merely "believed" decedent may have wanted him to sign it as a witness. The fact remains, however, that Jim "witnessed" nothing, and there is no assurance on the record before me that, later on with Marcus, decedent had even read the document he - Marcus - told her to sign, or that she knew the contents of the document.
The proof is unequivocal that Jim and Marcus were at the hospital to sign and witness the execution of a document at Olga's request. The record also is clear that the evidence about how the document was put together, and what was put into it, is inadmissible hearsay from Marcus and Jim about what was told to them by Olga, the sole beneficiary under the alleged Will.
Olga's reliance on Matter of Jones, 157 Misc. 847 [1936], is misplaced. Although Jones stands for the proposition that the order of signatures on a Will - with testator normally signing first and the witnesses thereafter - may be "varied" in a proper case, as in Jones, the circumstances in Jones were far different from what is presently before me.
In Jones, "the signing by the witnesses and [then by] the testator was accomplished in a few minutes, all being present" (id., at 848, emphasis added). Furthermore, the evidence before the Court in Jones establishes
"that the testator knew and declared the instrument to be his Will to the witnesses. He sought them out for the purpose of being witnesses and requested them to act as such" (id., at 849).
Here, unlike Jones, Olga prepared the Will and made changes to it later at some point. Olga also contacted both Jim and Marcus to come to Millard Fillmore Suburban Hospital to act as witnesses to the execution of the Will. Even if decedent knew both Jim and Marcus, she certainly never asked them to witness her signing any document. And, much more fundamentally, there is nothing in the record to establish that decedent even knew what was in the document she signed on July 24, 2020.
I cannot conclude on the record before me that the July 24, 2020 document being offered for probate as decedent's Will was duly executed by her or that it was properly witnessed. There is no proof that decedent had read the document or that she knew what was in it, and thus it cannot stand as representing her testamentary wishes.
Accordingly, probate of the July 24, 2020 document is hereby denied.
Finally, I direct that full letters of administration now issue to the Erie County Public Administrator, and I set this matter down for a status report before me on Tuesday, March 7, 2023, at 9:30 a.m., to set a schedule for what is needed to bring this estate to conclusion.
This decision shall constitute the Decree and Order of this Court and no other or further decree or order shall be required.