Matter of Orejas

[*1] Matter of Orejas 2006 NY Slip Op 51150(U) [12 Misc 3d 1172(A)] Decided on June 22, 2006 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 22, 2006
Sur Ct, Bronx County

In the Matter of the Estate of Emiliano Orejas, Deceased.



229-P/03

Lee Holzman, J.

In this compulsory accounting proceeding commenced by the decedent's surviving spouse, the parties stipulated that the objections of the executor, alleging that the spouse lacks standing to commence the proceeding, are to be treated as a motion for summary judgment. The spouse asserts that her right to an elective share under EPTL 5-1.1-A gives her standing to compel an accounting. The executor contends that the spouse is not entitled to an elective share because she did not serve and file the written notice of election within two years of decedent's death as required by EPTL 5-1.1-A(d)(1). He also argues that the spouse is not entitled to an elective share because neither she nor the decedent were New York domiciliaries at the time of his death.

The primary issue is whether the executor should be equitably estopped from raising the two-year limitation period as a defense to the spouse's right to recover her elective share from the testamentary beneficiary of a condominium apartment where the record reflects that the existence of the will was concealed from the spouse until approximately three years after the decedent's death, when the executor finally served process upon her in the probate proceeding, and that prior thereto the spouse did not know that she would be required to seek an elective share because she had continued to collect the rental income from the apartment and believed that the apartment had passed to her, the decedent's sole distributee, by intestacy.

Although the decedent died on October 1, 2000, the executor did not file a petition to probate his will, dated May 20, 1986, until March 24, 2003, two and one-half years later. It appears that a condominium located in Bronx County is the sole asset passing under the will. The executor claims that probate was delayed because the decedent died while living in Chile and that the sole legatee, the decedent's sister, lived in Spain. He alleges that it took time to transmit and translate documents. In any event, the executor listed the spouse's interest in the estate as "Right of Election" in paragraph 6 (a) of the probate petition. The spouse's status was also listed as "widow-right of election" in the notice of probate that was filed.

The spouse alleges that the first time that she learned about the possible existence of a will was when she was served with a citation, returnable October 27, 2003, after which she immediately retained an attorney. The attorney filed a notice of appearance on November 11, 2003. Any objections were to be served and filed by November 20, 2003. No objections having been filed, on July 9, 2004, the decree admitting the will to probate, which was noticed for settlement upon the spouse's attorney, was entered and letters testamentary issued to the executor. After the decree was entered, the court received a letter from the spouse's attorney, dated July 7, 2004, in which he enclosed objections that he wanted to file on behalf of the spouse. In addition to the fact that the will had already been admitted to probate, the objections [*2]could not be accepted for filing because they were not in the proper form and the statutory filing fee had not been paid. In November, 2004, within approximately four months of the issuance of letters testamentary, the petitioner served and filed her notice of election.

The decedent and his spouse lived as husband and wife from their marriage in 1984 until his death. On April 10, 1986, the decedent purchased a condominium apartment in the Bronx. In 1994 the couple traveled from the Bronx to Chile, allegedly seeking medical treatment for the decedent's failing health. Besides suffering from Parkinson's Disease, the decedent had a blocked carotid artery. They remained in the Chilean mountains, hoping for improvement to the decedent's condition. At the time of his death, the decedent still owned the condominium apartment in the Bronx which had been rented since 1994. The rental income from the apartment was deposited directly into the couple's bank account in New York from 1994 until after the decedent's death.

The spouse asserts that the decedent never changed his domicile from Bronx County to Chile. She avers that although he resided in Chile for health reasons the last six years of his life, he always intended to return to the Bronx where he had made his life. According to her, neither she nor the decedent ever worked or paid taxes in Chile and that they received very little mail there over the years. They had no testamentary assets in Chile. The decedent's only will was drafted by a New York attorney, executed in New York and admitted to probate in Bronx County where the condominium apartment, the decedent's sole testamentary asset, is located.

EPTL 5-1.1-A(d)(1) provides in pertinent part as follows: " An election under this section must be made within six

months from the date of issuance of letters testamentary or of

of administration, as the case may be, but in no event later than

two years after the date of decedent's death."

Some cases have held that the two-year period is a statute of limitations which cannot be extended by the court while others have held that the time to make the election may be extended by the court under subdivision (d)(2) "provided that no decree settling the account...has been entered and that twelve months have not elapsed since the issuance of letters." The cases holding that the two-year period is a statute of limitations that may not be extended reason that the words "but in no event later than two years after the date of decedent's death" were not in the predecessor statute and, consequently, this language would be meaningless surplusage if subdivision (d)(2) is construed to permit the time to elect to be extended beyond the two-year period (Matter of Wolfer, NYLJ, November 3, 2004, at 31, col. 6; see also Matter of Fernandez, NYLJ, December 9, 2003, at 26, col. 1). The cases granting discretion to the court to extend the time to make an election beyond the two-year period rely not only upon a literal reading of (d)(2) but also upon the underlying purpose of the two-year limitation, to wit, that there should come some point in time after a person receives property as the result of a decedent's death that the beneficiary should not have to deal with a claim for contribution to satisfy an elective share (Matter of Rosenkranz, NYLJ, November 21, 2000 at 30, col.5; see also Matter of Levin, 181 Misc 2d 868 [1999]). The argument is that the two-year limitation to make an election might be appropriate with respect to testamentary substitutes (EPTL 5-1.1-A[b]), which vest in the beneficiary upon decedent's death, but that the time to make an election against property bequeathed under a will should not commence until the will is admitted to probate because prior [*3]to that time the beneficiary could not claim complete ownership of the property (see Matter of Rosenkraz, supra ).

It would not be surprising if the Legislature never focused upon the issue of the appropriate time within which to make an election where, as here, the will was not offered for probate until more than two years after the decedent's death and the spouse seeks a contribution to satisfy her elective share from the testamentary beneficiary of a condominium apartment that the spouse had every right to believe that she owned until approximately three years after the decedent's death when she was made aware of the existence of a will that provided otherwise. Now that this appears to be a recurring issue, the Surrogate's Court Advisory Committee of the Office of Court Administration is considering the best way to amend the statute. One possible solution would be to make the two-year limitation applicable only to contributions to satisfy the elective share from beneficiaries of dispositions which are deemed to be testamentary substitutes while permitting the election to be made against the beneficiaries of testamentary assets within six months of the issuance of letters, regardless of the period that has elapsed since the decedent's death.

Here, assuming arguendo, that the two-year period is a statute of limitations, the doctrine of equitable estoppel bars the executor from raising this defense. A party is equitably estopped from asserting the statute of limitations as a defense where the conduct of that party has concealed pertinent facts about a claim which the claimant does not find out about until after the period to assert the claim has expired (57 NY Jur 2d, Estoppel, Ratification and Waiver § 24). It is well settled that where a fiduciary conceals facts upon which a claim could be based, the doctrine of equitable estoppel is applied to either toll the statute of limitations or to preclude the fiduciary's reliance upon it (Matter of Piccillo, 19 AD3d 1087 [2005], citing General Stencils v. Chiappa, 18 NY2d 125, 127-128 [1966]; Matter of Watson, 8 AD3d 1092, 1094 [2004]; Niagara Mohawk Power Corp. v. Freed, 288 AD2d at 819-820 [2001]; Erbe v. Lincoln Rochester Trust Co., 13 AD2d 211, 213-215 [1961], appeal dismissed 11 NY2d 754 [1962]). Not only private citizens but also municipalities have been equitably estopped from relying upon the statute of limitations as a defense where improper conduct was the reason that the claim was not filed within the limitation period (Bender v. New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Reed v. City of Syracuse, 309 AD2d 1195, 1197 [2003]; Rogozinski v. Petronio, 284 AD2d 992, 993 [2001]; Conquest Cleaning Corp. v. New York City School Constr. Auth., 279 AD2d 546 [2001]).

In Reed v. City of Syracuse, supra , the county was equitably estopped from raising the statute of limitations as a defense where the vehicle was not registered in the county's name and the county did not acknowledge that it was the owner of the vehicle until after the statute of limitations had expired. Here, the same equitable principles should preclude the executor from raising the two-year period as a defense where his failure to probate the will within two years of decedent's death caused the spouse to believe that she had no reason to seek an elective share within that time frame. The executor's assertion that the delay of approximately three years before the spouse was served with process in the probate proceeding was attributable solely to translation and transmittal problems cannot be accepted at face value. Furthermore, when the executor eventually got around to filing the will, he stated in both the probate petition and the notice of probate that the spouse's interest in the estate was a right of election. He now argues [*4]that at the time that he made these statements the spouse was already barred from taking an elective share because more than two years had elapsed since the decedent's death.

The executor is equitably estopped from asserting the statute of limitations as a defense against the spouse's elective share 1) where he must be deemed to have concealed the existence of the will from the spouse inasmuch as he offered no plausible explanation for his failure to have notified the spouse about the existence of the will until approximately three years after the decedent's death; and 2) where the concealing of the will caused the spouse to believe that there was no reason why she should seek an elective share within two years of the decedent's death. In short, equity does not permit the spouse's elective share to be defeated on the grounds that she did not present it in a timely fashion where the delay in asserting her elective share was caused by the executor's concealing from her that there was a will which would require her to seek an elective share.

Turning to the domicile issues raised by the executor, it is only necessary to consider whether the decedent was domiciled in New York State when he died because "it is the domicile of the decedent, and not that of his or her surviving spouse, which is controlling with respect to the right of election" (In re Weiss' Will, 64 NYS2d 331, 333 [1946], see also Matter of Sahadi, 30 Misc 2d 166 [1953]; Estate of Rosenfeld, N.Y.L.J., March 15, 1999, at 29, col. 4). Consequently, if it is determined that the decedent died a New York domiciliary, his spouse is entitled to an elective share even though she might be a non-resident alien (In re Weiss' Will, supra ).

Domicile is "a fixed, permanent and principal home to which a person wherever temporarily located always intends to return" (SCPA 103[15]). The primary difference between a residence and a domicile is that residence merely means "being in a particular locality," but it is the "intent to make it a fixed and permanent home" that makes "it one's domicile" (Matter of Newcomb, 192 NY 238, 250 [1908].

Here, the factual issues raised by the spouse to support her contention that the decedent was domiciled in New York when he died preclude granting summary judgment to the executor on the ground that the decedent was domiciled in Chile at that time. Specifically, although the decedent clearly resided in Chile for the last six years of his life, the factual allegations that he maintained an apartment and bank account in this jurisdiction, that his sole testamentary asset is located in this jurisdiction and that his last will and testament was prepared and executed in this jurisdiction suffice to at least raise an issue of fact with respect to the spouse's contention that Bronx County was the decedent's fixed, permanent and principal home to which he always intended to return.

For the reasons stated above, this decision constitutes the order of the court denying the executor's summary judgment application. The parties are directed to appear for a pre-trial conference on July 19, 2006 at 11:00 a.m. The Chief Clerk shall mail a copy of this decision and order to counsel for the respective parties.

SURROGATE