Opinion
4336/2008.
Decided March 31, 2011.
William E. Frazier, Pro Se.
Lisa Barbieri, Esq, New York Attorney General's Office.
Marcel Carter, the decedent, died on September 26, 2008, at the age of 94. She was survived by her sister, Blanche Battle (Blanche). The propounded instrument, dated September 12, 2006, nominates William E. Frazier, Jr. (Frazier), who is not related to her, as executor. Under the instrument, decedent bequeaths to Frazier the residuary of her estate and directs him to give Blanche 25% of any "cash due or owing" to her. The will also provides that in the event Blanche is admitted to a nursing home, her 25% would go to Frazier. The instrument further directs that the executor pay an amount, not to exceed 11% of the residuary, to any charities he deems appropriate. Frazier filed a petition on September 31, 2008, to probate this instrument. Frazier has also applied for preliminary letters testamentary in order to defend against a holdover proceeding brought against him personally in the housing part of Civil Court in an attempt to establish his rights under the will to shares in a Mitchell Lama cooperative owned by the decedent.
At the time the will was executed, Blanche was already residing in a nursing home.
Before a will is admitted to probate, the court must be satisfied that it is genuine and duly executed, and that at the time it was executed, the testator was competent to make a will and was not under restraint. SCPA § 1408; Matter of Delorey, 141 AD2d 540 (2nd Dep't 1988). It is well settled that where a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in drafting the will, an inference of undue influence arises. Matter of Putnam, 257 NY 140 (1931).
The proponent, Frazier, who was approximately 40 years the decedent's junior, was not related to her, was her self-described care provider, is the primary beneficiary of the decedent's estate, and was the driving force behind the execution of the propounded instrument. These factors clearly raise an inference of undue influence. This inference is further buttressed by the emergence of an unsettling pattern. Frazier's own testimony and a review of the Court's records have revealed that Frazier was the fiduciary in the estates of a number of women significantly older than he, to whom he was not related and whose circumstances bore a striking resemblance to those of the decedent herein. A hearing was therefore held on August 30, 2010, to determine whether the proffered instrument was the product of overreaching or undue influence and whether it was duly executed. Matter of Saterlee, 281 AD 251 (1st Dep't 1953).
Frazier testified that he was the nominated executor of the estate of Nora Crossland, the administrator dbn of the estate of Sara Crossland, the administrator of the estate of his ex-wife, and the administrator in the estate of Barer Thomas. He was also the administrator of the estate of a Yonkers resident, the father of teenagers Frazier knew.
The Saterlee Hearing
The portrait that emerged from that testimony is of a man who systematically took over the personal and financial affairs of an elderly, fragile woman whom he knew to have been afflicted with dementia. What had once been hers alone progressively over time became his. He moved into her home, put his name on her bank accounts, listened to her phone calls, put her under surveillance, and had her health care proxy — nothing that concerned the decedent eluded his reach. Moreover, both his testimony and court records reveal that this was not the first time he became the nominated executor of the estate of a significantly older woman with property to whom he was not related. The scenarios he describes as leading to his myriad fiduciary appointments are consistent: the women are cast as elderly and alone, prey to abusers and thieves who are then saved by Frazier, and who, in gratitude, name him executor of their estates. In short, the testimony did not serve to put the court at ease concerning the legitimacy of the propounded instrument.
On the hearing date, the Attorney General appeared and Frazier appeared pro se. He was advised that he could retain an attorney but chose to proceed without one. He was the sole witness, and he testified at length to the following:
Decedent's sister, Blanche Battle, who lives in a nursing home in North Carolina, was mailed a notice of the hearing but was ill and unable to attend. She sent the court a notarized letter stating that she and her sister, the decedent, were very close and that each had agreed to leave her estate to the other. According to this letter, decedent had agreed to come live with her because they were both alone, but Mr. Frazier did not allow that to happen. Ms. Battle states that her sister was very afraid of Mr. Frazier, and that when Mr. Frazier drafted the will, he knew she was living in a nursing home so he inserted the clause that she was to get nothing if she was living in a nursing home.
He has a B.A. degree in criminal justice, is a candidate for a masters in divinity, was self-employed as a consultant in financial matters, including estate planning. His relationship with the decedent commenced in mid-1985, when the decedent and her sister Sally Fountain started regularly attending the church where he taught Sunday school. In November 1985, the decedent
started buying him small gifts, and the relationship deepened over time. Around 1987, after the death of decedent's sister Betty McMillan, the decedent and her sister Sally asked him several times to recommend an attorney who could draft a will for decedent. Frazier and the decedent discussed her testamentary plan, and he suggested that she establish a foundation or use her money to fund education.
In July of 1987, the decedent approached him after church services and informed him that she intended to designate him as a legatee in her will. Their relationship was growing steadily closer. By 1989, he was her friend as well as her Sunday school teacher, and he visited her weekly. The decedent and her sister Sally shared Thanksgiving dinner with Frazier and his family at his home, and they attended some social gatherings together. That same year, he began organizing the decedent's mail, paying her bills because she was experiencing difficulty remembering to pay them, and preparing both her Mitchell Lama Housing income affidavit and her income taxes. Decedent's social security benefits, her pension, and her husband's pension were being deposited directly to her bank accounts. Frazier arranged for her cooperative maintenance payments to be automatically deducted from her bank account.
In 1995, he learned that the decedent had been diagnosed with dementia. She asked him to move in with her, but he declined to do so at that time. In 1999, though he knew of the diagnosis, Frazier allowed the decedent to execute a power of attorney that he then used to transfer all of decedent's money into a joint account bearing both their names, as well as an account in decedent's name in trust for himself. He testified that on occasion he wrote checks to himself as gifts from these checking accounts. Shortly thereafter, he began escorting the decedent to her doctor for monthly examinations and "vitamin B complex shots for memory" because en route she would become "distracted" and fail to arrive at her appointments. By this time, Frazier was seeing the decedent two or three times a week.
In 2002, the decedent again asked him to recommend an attorney who could draft a will for her. In December of that year, he escorted the decedent to Claude D. Tims, Esq. Frazier had informed Mr. Tims that he had consulted with the decedent's doctor and that the doctor had assured him that the decedent could make her own decisions. Frazier did not see a draft of the will until two or three days after this appointment, when he saw it on decedent's dining room table. It was then that he learned that he was the nominated executor in the decedent's will. Sometime thereafter, the decedent told Frazier that she wanted to make changes to her will but had been unable to reach Mr. Tims. Frazier then attempted to contact Mr. Tims and learned that he had passed away.
Initially, Frazier denied having retained Mr. Tims as an attorney in a personal matter prior to taking decedent to him. However, he ultimately conceded that Mr. Tims had previously represented him in another estate in which he was unrelated to the decedent and was named executor. That decedent's niece and nephew successfully had letters testamentary issued to him revoked. He also conceded that he had done some para-legal type work for Mr. Tims.
Frazier testified that in 2002 he was concerned that two men were trying to extort money from the decedent and that he was unable to check on the decedent daily. He therefore installed a video camera system in her house. He was able to monitor her remotely so that he would know her whereabouts and activities. He was able to listen in on telephone conversations she had with her sister Blanche on speaker phone. In 2005, and at the decedent's request, Frazier moved in with her. He testified that by that time he was taking care of all the decedent's personal needs — including bathing her. He bathed her because she was afraid of getting into the tub on her own, but did not want services from the visiting nurse. He noted that his attempts at securing services for the decedent "caused problems." Specifically, in 2006, the Concord Agency, the agency that provided the decedent with her meals on wheels, made allegations that the decedent was being abused by him. He requested a fair hearing on the matter. The investigation revealed the allegations to have been unfounded. He was provided with a written determination but did not offer it into evidence. That same year, the decedent started calling him by her deceased husband's name, when he "did something nice for her." Still in 2006, on the decedent's behalf, Frazier approached several attorneys concerning drafting a will but none were willing to do so for decedent because of her age. At the time, she was over 90.
The will Mr. Tims had drafted in 2002 appeared to have missing pages and contained the decedent's handwritten additions. Concluding that he could not have the decedent sign it in that condition, but determined nonetheless to accede to the decedent's wish to have a will drafted, he retyped the will Tims had drafted, inserting the handwritten changes, but otherwise neither adding nor deleting anything. He then contacted the decedent's doctor regarding her ability to execute a will because he was concerned with the appearance of the decedent executing a will at his behest since she had been diagnosed with dementia, and because he was concerned that people in the community had observed the decedent sometimes acting oddly. The doctor said the decedent had dementia but was clear about what she wanted. Frazier asked the doctor to witness the decedent's will and escorted the decedent to the doctor's office where the decedent executed the will in the presence of Frazier, her doctor, and the doctor's secretary. At the time of the execution, the doctor read the will and then asked the decedent if she knew what the document was, to which she replied yes. He and his secretary then signed as witnesses.
Frazier further testified that he needed to have the will probated and letters testamentary issued to him so that he would have "standing" to litigate a holdover proceeding brought against him with regard to the decedent's apartment in a Mitchell Lama cooperative and thus establish that the apartment is an asset of the estate that was devised to him.
At the conclusion of the hearing, both the Attorney General and Frazier were given three weeks to make written submissions regarding any issues raised at the hearing. On September 19, 2010, Frazier asked for and received an extension of time for his submissions, Frazier was granted a further extension of time to October 29, 2010. On November 24, 2010, Frazier moved this court for an "unspecified extension of time" to file post-hearing submissions. The Attorney General did not oppose allowing Frazier more time but requested that the court set a date certain for Frazier's submissions. Frazier was granted an extension of time until January 31, 2011. Frazier has had over seven months, since August 30, 2010, to make his submissions, but he has not.
In a letter dated January 31, 2011, Frazier stated that he needs more time to prepare his submissions because, for medical reasons, he had been unable to prepare them. He states that since January 7, 2011, he has not been able to sit for long periods of time. Frazier enclosed a letter from his doctor which states that Frazier should refrain from strenuous activity, and that Frazier cannot sit, stand or walk for extended periods of time. The letter does not say Frazier needs to refrain from those activities which would be necessary to prepare his submissions.
The Attorney General's Objections
The Attorney General recommends that the probate of the instrument be denied, stressing the numerous inconsistencies contained therein. The Attorney General notes that although the will makes Frazier the residuary beneficiary, it still directs him to distribute part of the residuary estate to other beneficiaries. Specifically, it directs him to give 25% to the decedent's sister, provided she is not in a nursing home, and further directs him to make a charitable donation not to exceed 11% of the residue. The Attorney General also notes that since Frazier testified that he and the decedent visited the decedent's sister in a nursing home, it follows that at the time the will was executed, they knew that her sister was living in a nursing home, and consequently, that Frazier would be the primary beneficiary of the will as drafted. Finally, the Attorney General argues against probate of the instrument on the ground that Frazier's testimony fails to establish that it was duly executed.
The Court agrees that the proffered instrument contains inconsistencies that undermine Frazier's claims concerning its genuineness. As noted above, Frazier is made the residuary legatee yet is directed to make further distributions under specified circumstances. Most troubling of all, however, is the fact that this instrument, which grants Frazier the lion's share of the decedent's estate, was drafted by Frazier himself. All the evidence seems to point to the fact that Frazier was the driving force behind the proffered instrument — its conception, its drafting, and its execution.
The record and the evidence adduced at the hearing make it clear that the proferred instrument was not duly executed, was not the product of the decedent's own volition, and that the decedent lacked the capacity independently to execute a will.
Undue Influence
Frazier's own testimony gives rise to a strong inference of undue influence. Frazier was not related to the decedent, he placed himself in a fiduciary and confidential relationship with her, he was involved in the drafting and execution of the proffered instrument, and pursuant to its provisions, received the bulk of her estate. See Matter of Saterlee, supra. Frazier's uncorroborated testimony establishes that he completely insinuated himself into the decedent's life and controlled every aspect of the decedent's personal and financial affairs. His dominion over her continued until her death. Focusing only on some of his more striking testimony, Frazier testified that some years after the decedent had been diagnosed with dementia, he had her execute a power of attorney giving him authority to make decisions concerning her finances and health care. He testified also that he used this power of attorney to deposit all of the decedent's funds into two accounts: one account which was held jointly in both their names, and one which was in decedent's name in trust for himself. He acknowledged that he made gifts to himself from these accounts. He testified also that he redrafted her will and arranged for its execution at her doctor's office. He testified that, before actually moving into the decedent's residence, he installed a video camera in her apartment, by which he kept the decedent under constant surveillance. Finally, his testimony clearly demonstrates the decedent's complete dependence upon him for her most basic needs — including bathing, and to her mental confusion, such that she often mistook him for her deceased husband.
Rather than assuaging the court's concern regarding his influence, Frazier's testimony persuades the court that he overpowered decedent's will and that the instrument she executed was a product of his volition and not hers. Undue influence has often been defined as a "moral coercion, which restrained independent action and destroyed 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." Children's Aid Society v. Loveridge, 70 NY 387, 394 (1877). The facts presented evince the exercise of undue influence by a trusted confidant over a weak and confused elderly woman. Given the totality of these circumstances, the court is not satisfied that the proffered instrument was solely a product of decedent's own wishes, but finds instead that it was the product of Frazier's overreaching and undue influence.
Testamentary Capacity
The record fails to support Frazier's assertion that decedent had the capacity to execute a will. In fact, his own testimony points with inexorable logic to the opposite conclusion. Frazier has testified, among other things, that the decedent had been diagnosed with dementia, that the decedent sometimes mistook him for her deceased husband, that neighbors sometimes perceived her behavior to be odd, that she allowed a non-relative to have full access to her bank accounts, and to become her only contact with the outside world, to the exclusion of everyone else. He also testified that she allowed him to take over every aspect of her life, even the most intimate, allowing him to bathe her. Moreover, the Court is inclined to agree with the Attorney General that the provision in the proffered instrument that leaves her only surviving sibling, Blanche 25% of the residuary, but only if Blanche is not in a nursing home when Blanche resided in a nursing home, puts the decedent's mental capacity in question. It strains credulity that the decedent, being of sound mind, would have intended such a provision.
Frazier has thus failed to demonstrate that, at the time of the execution of the proffered will, the decedent understood the nature and consequences of executing a will, the nature and extent of her property and the natural objects of her bounty. See, Matter of Kumstar, 66 NY2d 691 (1985), rearg. den. 67 NY2d 647 (1986).
Due Execution While Frazier has filed with the Court affidavits from the attesting witnesses pursuant to SCPA § 1406, he has not produced either witness at the hearing for the purpose of establishing due execution. Moreover, Frazier has failed to submit any credible evidence that the decedent ever read the will, that she declared to each of the attesting witnesses that the instrument was her will and that the witnesses signed at her request. The genuineness of the proffered instrument, the validity of its execution, and the compliance with the formalities of EPTL § 3-2.1 have not been demonstrated to the satisfaction of the Court.
Appointment of the Public Administrator For the foregoing reasons, probate of the instrument is denied. The Court is not satisfied that the instrument is genuine, that it was validly executed, that it was a product of the decedent's own volition or that she had the requisite capacity to execute a will. See SCPA § 1408. Estate assets remain to be administered, however. Accordingly, unless Blanche Battle, the decedent's sister, or her designee, petitions for letters of administration within 45 days of this decision and order, letters of administration shall issue to the Public Administrator, Kings County.
The Clerk of the Court is directed to mail a copy of this Decision and Order to the petitioner and Blanche Battle.
This constitutes the decision and order of this court.