Matter of Lebow

[*1] Matter of Lebow 2005 NY Slip Op 50051(U) Decided on January 14, 2005 Surrogate's Court, New York County Roth, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 14, 2005
Surrogate's Court, New York County

In the Matter of the Application of Surya Bolom and Ruth Sucato, as Temporary Administratrixes of the Estate of FAY LEBOW, Deceased, To compel a turnover of property of the Estate pursuant to SCPA 2103. Probate Proceeding, Will of FAY LEBOW, Deceased.



0002/97

Renee R. Roth, J.

Incident to this probate proceeding in the estate of Fay Lebow, the temporary administratrices (decedent's nieces who receive 70 percent of the residuary) move for partial summary judgment seeking a determination that the attorney draftsman has not met his burden of showing that the bequest to him under the propounded instrument and various lifetime transfers of decedent's property were not the products of fraud or undue influence.

At the outset it is observed that any person asserting a gift from a decedent must prove such gift by clear and convincing evidence( Gruen v Gruen, 68 NY2d 48; Matter of Szabo, 10 NY2d 94;). Where there is also a confidential relationship, such as between an attorney and his client, the claimant has an additional burden of showing that the alleged gift was not the product of overreaching( Matter of Kelsey, 29 AD2d 450, aff'd 26 NY2d 792; Allen v LaVaud, 213 NY 322 ).

The uncontroverted evidence establishes the following. Decedent died testate on August 13,1996 at the age of ninety-eight. The propounded instrument dated March 18, 1993 was drafted by respondent who had known decedent for only two years. Nonetheless, he is the recipient of thirty percent of the residuary and is nominated, along with decedent's brother, as a co-executor.

Decedent had originally retained respondent to represent her in her capacity as fiduciary of her deceased sister's estate. Within two years respondent had not only drafted the above will but had apparently convinced decedent to put his name on her bank account as a joint tenant, advising her that because her signature was becoming shaky it was necessary to have him sign her checks. Respondent then began to systematically withdraw funds from this account into his [*2]own escrow accounts. He has not shown that this was done with decedent's knowledge or consent. Once decedent died, he claimed these transferred funds were outright gifts from decedent and, therefore, not subject to the rule that a joint tenant can withdraw only his moiety (one half) during the lifetime of his joint tenant (Heinberg v. Heller, 38 ny2d 836; Matter of Fildiley, 63 Misc2cd 824).

It is observed that the fact that monies were transferred into escrow accounts shows, on its face, that these were not meant at the time to be outright gifts to respondent. Furthermore, suspicion as to respondent's motives arises from his own correspondence with decedent's brother where he made it clear that he had not fully apprised decedent of what he was doing with her funds, to wit: "Fay doesn't know it, but she can also do the transfers. I cannot chance her transferring money in and still write checks against the checking account."

Finally, respondent effected the sale of Paramount stock, which had been in decedent's name, and deposited the proceeds ($99,290) first into his brokerage account, then one week later into his escrow account. Once again, although he claims decedent intended this to be a gift, the transfers on their face evince no such intention, nor has he provided anything even approaching the clear and convincing evidence he needs to uphold his claim to the funds or to rebut the inference of undue influence arising out of his confidential relationship with decedent.

In light of respondent's failure to meet his burden with respect to the transfers and the bequest under the will, the application for summary judgment is granted. Respondent is directed to turn over to petitioners, as fiduciaries of the estate of Fay Lebow, the sum of $196,424.25, plus interest. Such sum represents the proceeds of the Paramount stock sale, the date of death balance of the joint account and the transfers made from decedent's account into respondent's escrow account. Additionally, the bequest to respondent and his nomination as co-executor under the propounded instrument are excised.

Settle order accordingly.

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S U R R O G A T E

Dated: January , 2005