Mental Capacity and Marriage in New York, Part 2: Surviving the Surviving Spouse

In New York, a person is considered a surviving spouse even if the marriage is subsequently annulled or voided.  This is particularly problematic where a sham marriage has occurred, such as when a caregiver marries a person with known dementia.   Under the current law in New York, even if the marriage was annulled after the death of the mentally incompetent spouse, the surviving spouse may still claim his/her right of election against the estate.  This may have the effect of nullifying the decedent’s Will provisions or intestate distributions.

The issue is complicated in New York by the fact that there are several statutes that touch upon the issue of mental capacity and marriage.  Together they create a patchwork of referring statutes that nonetheless leave open the possibility that a surviving spouse from a voidable marriage may still take against the estate. 

Domestic Relations Law §7 provides that a marriage contracted between two people where one person “is incapable of consenting to a marriage for want of understanding” is deemed “void from the time its nullity is declared by a court of competent jurisdiction.”  In other words, such a marriage is voidable, that is, it remains valid until such time as a court declares it void.  When a court declares such a marriage void, then it has the effect of being void from its beginning.  Voidable marriages are distinguished in the law from void marriages, such as incestuous marriages.  These are considered void from the start, and require no judicial action to render them void. 

The Domestic Relations Law § 140 [c] provides that “[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage”

Nevertheless,  EPTL 5-1.1-A defines a “surviving spouse” as having a right of election against the deceased spouse’s estate “unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that: (1) A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage (. . .) was in effect when the deceased spouse died,” or that in the instant case “(2) The marriage was void as incestuous under section five of the domestic relations law, bigamous under section six thereof, or a prohibited remarriage under section eight thereof ” (EPTL 5-1.2 [a]).  There are no provisions that address what happens to the surviving spouse’s right of election if the marriage is annulled by a court due to the diminished capacity of the deceased at the time of the marriage.

As Presiding Judge Prudenti noted in Campbell v Thomas (2010 NY Slip Op 02082 [2d Dept 2010],   “New York, however, does not yet have a statute specifically addressing a situation in which a person takes unfair advantage of an individual who clearly lacks the capacity to enter into a marriage by secretly marrying him or her for the purpose of obtaining a portion of his or her estate at the expense of his or her intended heirs. When a marriage to which one of the parties is incapable of consenting due to mental incapacity is not annulled until after the death of the nonconsenting party, a strict reading of the existing statutes requires that the other party be treated as a surviving spouse and afforded a right of election against the decedent’s estate, without regard to whether the marital relationship itself came about through an exercise of overreaching or undue influence by the surviving party. On this appeal, we have occasion to consider whether the surviving party may nonetheless be denied the right of election, based on the equitable principle that a court will not permit a party to profit from his or her own wrongdoing.”

In  Campbell v Thomas, New York’s Second Department addressed the issue of mental capacity with respect to sham marriages.   In February 2001 Nancy Thomas left for a well-deserved one-week vacation, leaving the care of her 72 year-old Alzheimer-suffering father Howard in the care of Nidia Colon whom Nancy hired.  Unbeknowst to Nancy, Nidia married Howard during Nancy’s vacation.  She then had valuable assets transferred into her name, specifically putting her name as joint owner of Howard’s $150,000 bank account, and naming herself as sole beneficiary of Howard’s New York City Teachers’ Retirement System account then valued at $147,000.

Howard Thomas died in August 2001.  In November 2001 Nancy and her brothers Christopher and Keith commenced an action in Supreme Court asking that the court declare Nidia’s marriage to Howard as null and void, as well as the subsequent transfer of assets.  In their pleadings, they alleged undue influence, conversion, and fraud and moved for summary judgment.  On October 1, 2004 the Supreme Court denied the plaintiffs’ motion for summary judgement.  The Thomas children appealed.

The Appellate Court for the Second Department heard the appeal and found that the Thomas children had succeeded in demonstrating that Howard “lacked the capacity to understand his actions before his marriage, and that his mental state only diminished thereafter” (Campbell v Thomas, 36 AD3d 576, 576 [2007]).  The court reversed the Supreme Court and granted the plaintiffs’ motion for summary judgment.  Further, the court sent back the matter to the Supreme Court “for the entry of a judgment declaring null and void (1) the marriage between the defendant Nidia Colon Thomas and the decedent Howard Nolan Thomas, (2) a change in beneficiary in Howard Nolan Thomas’ Teacher’s Retirement System of the City of New York account, and (3) a change in the ownership of Howard Nolan Thomas’ Citibank accounts” (id.).  The Supreme Court so ordered on June 21, 2007.  Nidia Colon Thomas appealed.

In her appeal, Nidia alleged  that, under the applicable statutes, even if the marriage had been annulled, she was still considered the surviving spouse.  As such, she was entitled to the spousal elective share of Howard’s estate.  Since the marriage to Howard had been annulled almost six years after his death, the strict application of the statutes in question would have resulted in Nidia having a claim to the greater of $50,000 or one-third of the net estate.

However, the court demurred from such a strict application of the statutes on the principles of equity and public policy, so that “(n)either in criminal nor in civil cases will the law allow a person to take advantage of his own wrong” (Diaz v United States, 223 US 442, 458 [1912], quoting Falk v United States, 15 App DC 446, 460 [1899]).  Due to her overreaching and undue influence in marrying Howard, the court denied Nidia the benefit of her marriage to Howard.  Through her conduct, the court found that she had forfeited any benefit that stemmed from her marriage so that she would not be unjustly enriched.

In my next installment, I will examine another case where the mental capacity of one spouse was the determining factor.  If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.   Thank you.

When Is the Best Time To Make or Review Your Will?

If you have been asking yourself these questions, the answer is likely “now.”  There are several reasons why you may not want to wait.  The most obvious one is that tomorrow is promised to no one.  The second reason is that it is a good practice to review the terms of your Will on a yearly basis to assess the consequences of changes in family composition, financial updates, and changes in the tax law that may affect your estate.  The third reason is one that is often overlooked, that you may not always have the testamentary capacity to make a Will.   I have covered this topic in a previous post.

Making or changing a Will is a serious endeavor, and it should never be undertaken for negative reasons, such as to spite a relative or friend.  In New York, the making of a subsequent Will executed with all required formalities constitutes a revocation of any previously executed valid Wills and their codicils.  In New York,  a partial revocation by physical act, such as words added to a Will after it has been signed and witnessed, is not recognized and will have no effect on the Will.

A Will can also be revoked if it is destroyed by a physical act.  If the subsequent Will is later destroyed by a physical act, such as cutting it up or burning it or crossing out the testator’s signature, the prior Will that it replaced will not be revived in New York.  The earlier Will is legally invalid, and the decedent will have died intestate.

The case of Mabel Waingrow of Blooming Grove, New York provides a cautionary tale.  The owner of Town & Country Coffee Shop on Route 94, Waingrow died in 2003 at the age of 99 leaving an estate valued at $990,000.  She had outlined her husband, her son, and her siblings.  Her closest relatives were her five great-nieces and -nephews whom she never knew because they lived abroad.  A diligent attorney who prepared Waingrow’s Will in 2000 had discovered the distant relatives.

Waingrow had closed her coffee shop when she had turned 90, and without the constant social interaction she soon became a lonely recluse, beset by thoughts that people were trying to steal from her.  To her rescue came Nick Stagliano, a former criminal investigator for the Orange County District Attorney’s Office who befriended her and took care of her.    According to a story in the local Times Herald-Record, Stagliano was the only one present for her 99th birthday.

In 2001 Waingrow, who had a habit of writing a new Will to benefit whoever was friendliest to her and to spite those who had “unfriended” her, executed a new Will naming Stagliano as the sole beneficiary of her entire estate.  The next day, the Orange County Court named him Waingrow’s legal guardian because she could no longer take care of her affairs.  Her great-nieces and -nephews were not informed of this appointment.

Five years after her death, one of her grand-nieces filed suit contesting the Will claiming undue influence . The case was settled shortly after the trial began.  Waingrow’s five great-nieces and nephews received at least $500,000 of the estate, with the remainder going to Stagliano.  Stagliano also agreed to give up his role as executor of the estate.

In her multiple executions of Wills, Waingrow chanced revoking a valid Will because her failing mental health made her capacity to execute a valid Will questionable.  Had her 2001 Will been declared invalid  at trial due to undue influence, then she would have been deemed to have died intestate.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.

Since Waingrow had no grandchildren, and since her siblings had predeceased her, her surviving grand-nieces and -nephews risked having the entire estate escheat to the State if they pressed having Waingrow’s Will declared invalid because of undue influence on the part of Stagliano.  The prior Will executed in 2000 could not be revived under New York law.   Thus the only way that the grand-nieces and -nephews could be certain to receive any money from the estate was to settle with Stagliano.

The case of  Mabel Waingrow points out once again the necessity of working with an attorney who will  draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, as Mabel’s son did, and this reality must somehow be accounted for in your Will.  Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.  

It is also a good practice to make a yearly appointment with your attorney to review your Will.  Things in your life will surely change from year to year, and it is a good practice to get in the habit of talking through those changes with your attorney. Your attorney will be able to advise you as to any impact on your estate plan.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

What Constitutes a Valid Will in New York? Part 4: No Undue Influence

For a Will to be valid in New York, there must be an absence of undue influence.  Undue influence is an issue that arises in the context of a Will contest.  The person challenging the admission of the Will to probate may assert that the person making the Will (testator) did not have free will at the time that the Will was drafted. 

Undue influence implies that the testator was being advised to make certain property dispositions to the advisor who exercised power over the testator.  That power over could have been through psychological domination, or through a special relationship of trust such as one that would exist between long-time friends or siblings.  An allegation of undue influence may only arise in a Will contest when the advisor is receiving a direct benefit as a result of specific acts.  If the advisor is receiving an indirect benefit, then the proper charge is one of fraud.

What is the definition of undue influence with respect to the drafting of a Will?  The New York Court of Appeals defined the term in a case decided in 1877 called Children’s Aid Society v. Loveridge 70 N.Y. 387 (1877).   The definition has been used to determine the presence or absence of undue influence since that time:

“It must be shown that the influence exercised amounted to 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. 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” (Children’s Aid Soc. v. Loveridge, 70 N.Y. 387, 394-395).

There are certain confidential relationships where, absent an explanation, the inference of undue influence arises when the advisor is a named beneficiary in a Will.  The first such relationship to receive scrutiny is when the attorney drafting the Will is a named beneficiary in the Will.  “Such wills, when made to the exclusion of the natural objects of the testator’s bounty, are viewed with great suspicion by the law, and some proof should be required beside the factum of the will before the will can be sustained.”  (Marx v. McGlynn, 88 N.Y. 357, 371.).  In Matter of Putnam  257 N.Y. 140 (1931), the New York Court of Appeals held that there is a rebuttable inference of undue influence when an attorney is a named beneficiary in a Will that he or she drafted.  This is known as the Putnam rule

Lower courts in New York have since applied the Putnam rule to other confidential relationships, such as doctor and patient (Matter of Satterlee 119 N.Y.S.2d 309 (1953)); nurses and patients (Hazel v. Sacco, 52 A.D.2d 1042 [4th Dept 1976]); clergy and parishioner (Matter of Eckert 93 Misc 2d 677 (1978)); and accountant and client (Matter of Collins, 124 AD2d 48 (1987)).

To prove undue influence, the person objecting to the admission of the Will to probate must prove three elements: (1) motive, (2) opportunity and (3) actual acts of undue influence.  The standard of proof is by a preponderance of the evidence, meaning that it is more likely than not that the evidence presented is true.  Circumstantial evidence may be used, but this evidence must lead to a necessary conclusion of undue evidence.  The modest standard of proof, by a preponderance of the evidence, is used because the State has an interest in ensuring that estates are distributed in an orderly manner and according to the decedent’s wishes.  The person contesting the Will bears the burden of proof throughout the proceedings.

The issue of who bears the burden of proof is a Wills contest case is very important.  We have to distinguish between a claim of undue influence in a contracts dispute and a claim of undue influence in a Will contest. In a contract dispute, when the vulnerable party in a special relationship makes a claim of undue influence, the burden of proof shifts to the more powerful party to disprove the allegation. If the vulnerable party prevails, then the contract is voidable, meaning that the vulnerable party can elect to enforce the contract but the contract cannot be enforced against him or her. But in a Will contest where the issue of undue influence has been raised, the burden of proof never shifts from the person contesting the admission of the Will to probate.

How do these three elements play out in cases involving undue influence?  In a recent case decided in January 2010, Matter of Feller 2010 NY Slip Op 50001(U) [26 Misc 3d 1205(A)], the issue of undue influence arose in the context of funeral plans and the choice of a funeral home.  The attorney who had drafted the Will was also the executor of the estate and the proponent of the Will before the Surrogate Court.  But because the attorney was not a named beneficiary in the Will, the Putnam rule did not apply.   

The objectants to the admission of the Will to probate claimed that the attorney had used his influence to have the decedent change her funeral home.  The attorney had the opportunity to exert undue influence regarding the choice of a funeral home, and he did have a potential motive:  he represented a competitor funeral home.  But the record clearly showed that the decedent had selected a funeral home not represented by the attorney, eliminating any motive.  Moreover, the attorney had on several occasions advised his client that she should choose someone other than himself as executor.

Because the objectants failed to prove all three required elements to make a showing of undue influence, the court found an absence of undue influence.  The court also found that the testator had testamentary capacity and that the formalities for the Will execution ceremony had been properly followed.   The Will was, therefore, admitted to probate.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.