Matter of Bennett
Annotate this CaseDecided on April 14, 2006
Sur Ct, Suffolk County
Administration Proceeding, Matter of the Estate of Kirke Bennett, a/k/a KIRKE E. BENNETT, Absentee.
818 A 2004
Spada, Ardam, Sibener & Miller, P.C.
Attorneys for Petitioner
64 Smithtown Blvd.
Smithtown, NY 11787-5115
Michael T. Clancy, Esq.
Guardian ad Litem
50 Route 111, Suite 200
Smithtown, NY 11787
John M. Czygier, J.
In the context of captioned administration proceeding, petitioner, the temporary administrator of alleged decedent's estate, sought a determination, pursuant to EPTL 2-1.7, declaring him dead as of July 5, 1996. Thereafter the court directed a hearing for the purpose of taking proof concerning the circumstances surrounding the disappearance of Kirke Bennett ("Bennett"); to determine whether a diligent search had been made to ascertain his whereabouts; to establish that there was no explanation, other than his presumed death, for his continuous absence; and that he had no other distributees.
At the hearing, the credible evidence revealed that a diligent effort had been made to determine Bennett's whereabouts. Specifically, his business partner and his spouse testified that Bennett advised them that he was intent on ending his life and was determined "never to be heard from again". Submissions to the court revealed that Bennett, a married 49 year-old male, departed his home on July 5, 1995 leaving all his personal effects including his driver's license and credit cards. A missing persons report was filed with the Suffolk County Police Department. Additionally responses to inquiries concerning his whereabouts were made part of the court record. Those inquiries were addressed to the Board of Elections, Military Records, Department of Corrections, Social Security and a national search data base. All responses were essentially the same i.e. they had no information concerning Bennett's whereabouts. [*2]
A preliminary report by the guardian ad litem suggested that the information initially available was inconclusive as to whether or not Bennett had, in fact, died. Decision on the application was postponed until further information could be obtained or a determination that no further information was available could be made.
The hearing was later reopened in order to receive into evidence certain medical records which had not been previously available. Those records included copies of patient notes which memorialized Bennett's condition during several stays at the Veteran's Hospital in Northport, New York, just prior to his disappearance. Those reports are significant, largely because they provide a clear picture of his medical condition and prognosis at that time. He suffered from shortness of breath and other symptoms consistent with severely compromised cardio-vascular function. He was diagnosed as an alcoholic. Ultimately, his condition deteriorated to the point that he was placed on a waiting list for a heart transplant. During this time he was treated for anxiety and depression. His formal diagnosis was alcoholic cardiomyopathy. The court was presented with documentation concerning that condition. About 70% of those diagnosed with the disease die within five years of the onset of symptoms. His medical records reveal a late stage of the illness, a fact underscored by the extraordinary course of treatment undertaken by his physicians in placing him on the heart transplant list.
Based upon the hospital records and information provided by reports on alcoholic cardiomyopathy, the guardian ad litem amended his report to conclude that there exists no possible explanation for the disappearance of Kirke Bennett other than death.
Although the testimony initially elicited tended to suggest that Bennett was responsible for his own death, the compelling medical evidence presented leaves little doubt that he died as a result of illness. The medical evidence subsequently submitted at the hearing also provides a context for the statement made by Bennett concerning a desire to end his life, viz, it appears he was suffering from a condition that was terminal with no hope for recovery. That conclusion becomes even more inescapable when one considers the date he was diagnosed as needing a transplant (1995) and his ability to survive without such intervention. The [*3]court can only conclude that it is extremely unlikely that he survived, in his condition, for the last eleven years.
Based upon the foregoing, it is concluded that petitioner has met her burden of establishing that the statutory requisites of EPTL 2-1.7 have been satisfied and it is herewith declared that Kirke Bennett a/k/a Kirke E. Bennett died on July 5, 1995.
Settle decree on notice.
_______________________________
JOHN M. CZYGIER, JR., Surrogate
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