Matter of Coviello
2007 NY Slip Op 50620(U) [15 Misc 3d 1112(A)]
Decided on March 27, 2007
Sur Ct, Orange County
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This opinion is uncorrected and will not be published in the printed Official Reports.
Matter of Coviello
Decided on March 27, 2007
Sur Ct, Orange County
In the Matter of The Probate Proceeding Last Will and Testament of Pasquale D. Coviello a/k/a Pat D. Coviello, Deceased.
Michael Sussman, Esq.
40 Park Place
P. O. Box 1005
Goshen, New York 10924
Norman Shapiro, Esq.
P. O. Box 696
Goshen, New York 10924
Bull, Morreale & Judelson, PC
Charles A. Judelson, Esq.
90 Crystal Run Road, Suite 404
Middletown, New York 10941
Levinson, Reineke & Ornstein, Esqs.
David L. Levinson, Esq.
11 Abrams Road
P. O. Box 244
Central Valley, New York 10917-4101David Hasin, Esq.
5 Corporate Drive, Suite 106
Central Valley, New York 10917
Elaine Slobod, J.
This contested probate proceeding was tried before the undersigned without a jury on nine days between August 21 and October 23, 2006. Post-trial briefs and reply briefs were submitted and reviewed. The Will was propounded by Michele Okin, its principal beneficiary and decedent's paramour.[FN1] Objecting to the Will and appearing by separate counsel were (1) decedent's widow, Christina Coviello, who had commenced and had been in the midst of a contentious divorce proceeding against her husband based on his adultery with Ms. Okin; (2) Lisa Coviello Gonzales, an adult daughter from a prior marriage; and (3) Danielle Coviello, the now adult daughter of Christina Coviello, whom decedent had adopted. David V. Hasin, Esq., who had been appointed Guardian ad Litem to represent the interests of five infant legatees whose total bequests would amount to $210,000, supported the Will since his wards (a grandson, two nephews and Ms. Okin's 2 young children) are not distributees and would otherwise inherit nothing aside from the Will.
Pat Coviello died unexpectedly on May 5, 2004. He was 62 years of age and married to his wife, Christina from whom he was separated at the time of his death. He had executed a new Will on January 13, 2004 which is the document offered for probate. Among other questionable provisions, the tax allocation clause in the propounded instrument effectively destroys every monetary bequest to decedent's family.
The primary beneficiary of the propounded Will is Michele Okin since among other assets she inherits decedent's entire net residuary estate totaling about $4,000,000 to $5,000,000.
Ms. Okin, age 46, is an attorney who holds a Master's Degree in taxation. Before being indicted in the Fall of 2003 on multiple counts of defrauding mostly elderly clients, Ms. Okin conducted seminars on estate planning and held herself out to the public as an expert in estate [*2]practice and taxation. As proof of her expertise, she publicized the fact that she was the director of the Hudson Valley Estate Planning Council and a contributing writer to a book on financial and tax planning. Ms. Okin's specialty and the topic of many seminars on estate planning which she held was the creation of living trusts with pour-over wills.
In October 2003 Ms. Okin entered a guilty plea to two misdemeanors of using her specialty in Elder Law in an ongoing systematic scheme to take money from mostly senior citizens for legal services which she knew she would not be capable of performing. As part of her sentence, Ms. Okin was directed to make restitution of some $75,000 to $85,000 to the Lawyer's Victim Compensation Fund which had paid back many of the defrauded clients.
The decedent and his wife, Christina, had been clients of Ms. Okin at least since 1998 in which year she had prepared the first of two post-nuptial agreements for them. She prepared the second post-nuptial agreement in 2000 and then pour-over Wills and a Living Trust executed in November 2002. Decedent's estate plan in 2002 called for all assets to pour-over by Will into a Trust for the use and benefit of his wife, Christina, for life with the remainder to Christina's daughter, Danielle, whom decedent had previously adopted. Within a month of the execution of the November 2002 Coviello Wills and Trust, Ms. Okin and decedent started to date in early December 2002. According to Ms. Okin, they became intimate by mid January 2003. Decedent left his wife and child on January 23, 2003 and by May 2003 he had moved in with Ms. Okin.
Christina and Danielle testified to blatantly shameless and provocative sexual conduct by Ms. Okin in November 2002 as they described her interjecting herself into their family life and, according to his family, seducing the decedent. According to some witnesses, Ms. Okin's interaction with the decedent in public was often marked by inappropriate physical contact of a sexual nature initiated by Ms. Okin. Other witnesses described their interaction before them as being "in love." Ms. Okin's secretary, Barbara Staiano, in late 2003 prepared the draft of a Will for Pat Coviello based on notes he had written on a yellow legal paid. Neither that draft nor the notes on the yellow sheets were retained since that was not Ms. Okin's office policy.
Ms. Okin initially denied being the draftsperson of this Will, but over the course of this probate proceeding she changed her testimony in stages so that she eventually admitted that she was the draftsperson.
The testimony of Heather Shields, decedent's office manager, reveals that sometime in November 2003 she found a paper copy of another Will prepared by Ms. Okin for the decedent inside the Century-21 computer carrying case used by Ms. Okin. That unsigned document dated October 2003 was not the three-page document offered by Ms. Okin, but was a document of approximately 10 pages in length. Ms. Shields identified the print on the document she found as being larger than the relatively small type of the propounded Will. Ms. Shields read the copy which she found and testified that it contained at least one major variation from the Will offered by Ms. Okin. Ms. Shields indicated that she also had pulled up another will for decedent on Ms. Okin's computer hard drive.
Pasquale "Pat" Coviello
The decedent, Pasquale Coviello was by all accounts a very successful land developer, builder and real estate broker. However, Heather Shields, the manager of his real estate office, testified that she would read 90% of the mail to Pat because he needed reading glasses and if he really needed to read something he would use a magnifying glass. His wife, Christina, testified [*3]that her husband had kept a pair of reading glasses at work and another pair at home. Among the items Pat Coviello asked his daughters Lisa and Angela to purchase and bring to him while he was hospitalized in Saratoga a day or two before he died was a pair of reading glasses as he was otherwise unable to read magazines.
Neil Frishberg, Esq., who supervised the Will's signing ceremony, could not recall "one way or another" whether Pat wore eyeglasses during a conference in his office immediately before the Will was executed on January 13, 2004. Barbara Lein, one of the attesting witnesses, had known Mr. Coviello since she began working as a legal secretary for attorney Alan Lipman in 1986. Mr. Frishberg rented an office in Mr. Lipman's building in Goshen, New York. Ms. Lein could not recall if Pat Coviello was wearing eyeglasses at the Will signing ceremony. However, she allowed that she did not think that "Pat wore glasses as a rule."
Since Pat Coviello was not in the habit of carrying reading glasses on his person and there is no evidence that he wore glasses on January 13, 2004, it is unlikely that he read the subject Will during the one-hour conference with Ms. Okin's attorney, Neal Frishberg, on the date of its execution. Based on all the evidence, particularly the long delay between preparation and execution of this Will, and the discovery by Heather Shields of an unsigned copy of yet another Will three times longer and in larger type found in Ms. Okin's computer case, it would amount to speculation to conclude that the propounded instrument was the same document allegedly prepared by Barbara Staiano several months before January 13, 2004. Ms. Staiano did not recall typing the attestation clause nor the tax allocation clause and certainly did not type in the date of the Will or of that clause. In yet another of Ms. Okin's apparently disingenuous answers, she could not remember adding these items to the Will. Certainly Mr. Frishberg did not add these items to the Will.
Alan Lipman, Esq. had been Pat Coviello's attorney for four decades. In 1999 Mr. Lipman prepared three different Wills for Pat Coviello. Mr. Lipman, whose expertise is primarily in real estate development, described the decedent as someone who once he had decided to do a new Will he was more or less determined to get it done "then and there," but only after Mr. Lipman had made him sit down and read it.
It is noted that the decedent had initially retained Ms. Okin's personal attorney, Neal Frishberg, Esq., to represent him in his wife's divorce action. For some unexplained reason, the decedent changed his mind after a very short time and substituted attorney Mark Stern, also of Goshen, New York.
According to Alan Lipman, his attorney in very many real estate deals over four decades, Pat Coviello was "extremely careful in his review of documents." Mr. Lipman also testified that in his experience "no one could manipulate or lead" the decedent. Yet, Ms. Okin accompanied Pat Coviello to most of some 12 meetings with Mr. Lipman during the last 2 years of decedent's life. During these meetings, Ms. Okin interjected her opinions on a $6,000,000 subdivision in which decedent held a 50% interest. Her advice on this project was often contrary to that provided by Mr. Lipman. Because of Ms. Okin's intrusion in this multi-million dollar project decedent did not always follow the advice of his longtime attorney who brought to the table his extensive legal experience in land use and development.
While Mr. Lipman was generally reserved in his depiction of Ms. Okin's interference with his attorney-client relationship with decedent on real estate matters, the testimony of Mark Stern, [*4]Esq. Mr. Coviello's divorce attorney was blunt - Ms. Okin was overbearing at each of the meetings he held with decedent at which she had attended. Indeed, Ms. Okin attended many, if not all, of Mr. Stern's conferences with Pat Coviello concerning the contentious divorce proceeding with his wife Christina. According to Mr. Stern, if Ms. Okin was not present at the beginning of a conference she would not hesitate to just march into his office. While she was present at these meetings throughout 2003 and until Pat Coviello's death on May 4, 2004, it was difficult for Mr. Stern to deal with his client. Not only would Ms. Okin contradict Mr. Stern's advice but as he described it, Ms. Okin was "all over him." Mr. Stern had to admonish his client because of their amorous and inappropriate physical conduct in his waiting room, including Ms. Okin sitting on decedent's lap while kissing and even licking his ear. At no time did decedent direct Ms. Okin to leave these meetings. Ms. Okin, who had also been Christina Coviello's attorney until 2002, routinely countermanded Mr. Stern's advice, particularly his admonition to refrain from constantly taunting decedent's wife that he would get a divorce in Las Vegas and decedent's wife would "get nothing." Mr. Stern was pressed to the point of asking decedent on several occasions to retain another attorney because he would not listen to his advice. The only time his divorce attorney could get decedent to listen to his counsel was when Ms. Okin was not present.
Mr. Stern described his frustration when Ms. Okin would answer questions which he had posed to decedent and then she would tell his client what should be done. Mr. Stern described Ms. Okin as totally controlling the decedent.
The extent of Ms. Okin's control over decedent was most evident in the circumstances surrounding the execution of the propounded Will. The final draft of this document was prepared, without at least the attestation clause and a date, sometime between September and November 2003. If decedent had acted true to form as he was characterized by Mr. Lipman, he would have signed this instrument soon after it had been finalized. However, according to Ms. Okin this final draft sat for months in an envelope on top of a dresser in the bedroom she shared with decedent in her home. Ms. Okin testified that this unusual delay was due to the fact that she had been unavailable to go with decedent to her attorney's office to sign the Will until January 13, 2004. The inability of decedent for up to four months to travel on his own to seek advice from an independent attorney without being accompanied by Ms. Okin reflects the extent to which Pat Coviello had come to rely upon Ms. Okin and the control she exerted over his legal matters. Ms. Okin acknowledged that decedent relied upon her for estate planning matters.
Since Ms. Okin is the primary, if not the de facto sole beneficiary of decedent's multimillion dollar estate, this Court, as indicated, designated Ms. Okin although not the petitioner, as the proponent of the subject Will dated January 13, 2004 (see Dodd v Anderson 197 NY 466, 472; 2 Warren's Heaton on Surrogate's Practice §41.03[a]). Additionally, since Ms. Okin had been decedent's attorney, the Court also found that questions with respect to "the inference of undue influence" as established by the Court of Appeals in In re Putnam's Will 257 NY 140, would be tried simultaneously with the full panoply of objections (lack of due execution; incompetency; as well as fraud and undue influence) raised by objectants to the subject Will as filed by decedent's wife and two of his children.
The Putnam inference arising against a draftsperson-beneficiary of a will and, as it would [*5]turn out, the further inference of undue influence when an independent attorney has not counseled a testator as the Court of Appeals recognized in Matter of Henderson 80 NY2d, take on a new dimension in this proceeding since on November 10, 2004 in one of Ms. Okin's initial appearances before this Court she effectively denied that she had been the draftsperson of the Will. Ms. Okin stated during that appearance that her secretary, Barbara, had actually prepared the Will directly for decedent. As she explained, "Barbara worked for me but decedent paid her salary and Barbara prepared the Will right off of [decedent's] notes." As this proceeding advanced, Ms. Okin attempted to distance herself even further from any involvement in the Will's preparation. Ms. Okin would suggest that Barbara, without any input from Ms. Okin, had cobbled together selected boilerplate will clauses from among many such clauses contained in Ms. Okin's computer files.
As Ms. Okin related the events, sometime in the Fall of 2003 after decedent read Barbara's first draft he "then and there" made revisions which Barbara typed as the final draft. Ms. Okin asked this Court at that time to believe that her only involvement with this Will's preparation was to act as a courier of decedent's handwritten notes (which were not retained) between her secretary and decedent. Ms. Okin, who held herself out as an expert in wills and estates, feigned ignorance of the Putnam and Henderson precedents and went so far as to imply that a will's "drafter" was the person who typed the document.
In court papers submitted on December 3, 2004 her then attorney Neal Frishberg was taken in by his client's ruse since he claimed that although Ms. Okin was "not the actual draftsman, it is likely that, under the facts at bar, Okin will be deemed to have been the draftsman" (emphasis supplied). Indeed, it was not until an appearance on January 26, 2006 by her current attorney, Michael Sussman, also of Goshen, that Ms. Okin ceased pretending that she was not the draftsperson of the propounded instrument.
The propounded document itself requires extreme scrutiny for not only is Ms. Okin the attorney-draftsperson-beneficiary, but because it also appears to contain deceptive as well as deceptively positioned provisions. For a document drafted by the primary beneficiary whose expertise was wills, estates and estate taxation, it is difficult to conclude that these provisions, especially the unusual positioning of the residuary provision, and the devastating effect of the tax allocation clause on bequests to decedent's family, were not purposely drafted by and for the benefit of Ms. Okin.
The proponent would have this Court believe that the basic format for this document came from boilerplate will clauses which her secretary had unilaterally selected and copied from wills stored on Ms. Okin's office computer hard drive.
However, this Will's format stands in stark contrast to the basic format for wills and trusts previously utilized by Ms. Okin's office. For example, a direct comparison between the propounded instrument and the living trust and pour-over wills Ms. Okin prepared for Christina and Pat Coviello in November 2002 reveals that in these latter documents:
(a) each article, as well as its subparagraphs, have large boldfaced identifying captions;
(b) proper names in the latter stand out since they are either in capital letters or even boldface capitals;
(c) the residuary clause in decedent's November 2002 Will not only stands alone in a [*6]separate article, but it consists of the following twenty (20) words preceding the naming of the beneficiary:
"I give all the rest, residue and remainder of my property of whatever nature and kind and wherever located to..."
However, the residuary clause benefitting Ms. Okin in the subject Will is positioned in an article captioned only "III." Reduced to only six (6) words, plus "Michele Okin", it blends in and appears almost as an appendage to the preference clause to specific bequests.
(d) the tax apportion clause in the 2002 documents is contained in its own article, an article which is heralded by a large boldfaced caption "Death Taxes."
By contrast, the tax clause in the subject Will appears not in its own titled paragraph but as the second sentence/paragraph after an in terrorem clause in the last article captioned only as "VIII." Ms. Okin's secretary did not recall typing either the in terrorem or tax apportionment clauses in her draft of this Will.
Since another proceeding (File No. 91-2005) is presently before the undersigned involving another Will drafted by Ms. Okin, this Court takes judicial notice that its format of separate clauses, and highlighted or boldfaced capitals, appears to have been the rule in other testamentary documents prepared by Ms. Okin.
There are anomalies in the propounded instrument which strongly suggest that deletions or modifications probably had been made hastily or thoughtlessly without pausing to reconcile those changes with the document as a whole. For example:
(a) at the beginning of this document in the article captioned "B." (following "I.A.") decedent's wife Christina is identified by name and that she "will be referred to as my wife." However, neither Christina nor "my wife" is ever mentioned again in this version.
(b) also on the first page, the cash bequests in Article III to decedent's daughter Danielle ($250,000) and his grandson Justin ($100,000) are qualified by the phrase "to pay for school in trust." However, although a Trustee, namely Ms. Okin, is appointed in subparagraph B. under Article V, other than references to EPTL §11-1.1 powers and paraphrases of those statutory generic powers, there are no specific provisions recited establishing any conditions of these trusts, e.g., term of years, nature of schooling, timing of the distribution(s) of any remaining assets, etc.
(c) it is noted that subparagraphs A and B of Article IV actually eliminate the need for educational trusts since the executrix, Ms. Okin, was given discretion under subparagraph A to either retain bequests until age 21 or under subparagraph B pay them to a custodian under the Uniform Transfer to Minors Act (EPTL 7-6.1 et seq).
(d) the language used in the last sentence of Article V.C. indicates that a "successor Executor" had been named by decedent in some prior article of this propounded document. However, no appointment of a successor had been made anywhere in this version.
(e) Residuary and Tax Allocation Provision
Most noticeable are the absence of a separate and distinct residuary provision and the devastating effect of the tax allocation clause upon bequests to decedent's family.
During his trial testimony Mr. Lipman, as indicated decedent's attorney for over 40 years and the draftsperson of many of Mr. Coviello's prior Wills, scanned the subject Will when asked [*7]to find the residuary clause. He was forced to ask "Where is the residuary provision, if there is one?" The Court had to point out the unusual location of this all important provision at the end of an unrelated article of "specific bequests".
This provision is tucked in immediately following, and almost as if it was a continuation of what normally would be the final sentence at the end of a clause of general bequests (called "specific bequests" by the draftsperson) to specify priorities, if need be, among those "specific bequests." Thus, paragraph III after providing 12 specific or general gifts, concludes in approximately the following point type:
"...for school...for my brother John F. Coviello shall be given preference over other specific bequests. All the residue and remainder to Michele Okin."
Those bequests, primarily general bequests of money totaling $855,000 are short lived since the Will's very last provision, VIII, reads:
"I direct that all taxes, estate, transfer or death, imposed upon my estate whether with respect to property passing under this Will or otherwise, shall be apportioned pro rata from my specific bequests of my estate." (emphasis supplied)
Since the taxes on this estate exceed $2,000,000, all of these so called "specific bequests" are effectively nullified by the latter provision except for decedent's half interest in his parent's residence which he devised to Ms. Okin, the draftsperson, free of estate taxes. Therefore, after decedent in paragraph III had expressed a preference for funds to educate his adopted daughter ($250,000) and his grandson ($100,000), as well as to provide $100,000 to his brother John, the last provision of his Will inexplicably nullified those provisions.
The belated argument of Ms. Okin that the "residuary" was actually intended by decedent [FN2] to be just another "specific bequest" which would therefore share most of the tax burden, is rejected since the two are clearly distinct concepts.
Ms. Okin's argument in this regard is contrary to the position which she had taken in support of an Order to Show Cause declined to be signed by this Court and rejected by decision/order dated January 25, 2005. In an affidavit dated January 24, 2005 offered in support of that application Ms. Okin railed on about "the conspiracy" by decedent's two older daughters, "masterminded" by attorney Stern "to cheat me of my inheritance." Ms. Okin went on to point out that the daughters would object to this Will because Mr. Stern had "undoubtedly advised them that their monetary legacies would likely be consumed by the estate taxes, which the instrument made fully applicable to the specific legacies and what was left did not have to paid for 20 years. Thus, they stood to get virtually nothing if the instrument were admitted to probate." (emphasis supplied)
If Ms. Okin had actually believed then as she does now that her gift of the $4,000,000 to $5,000,000 residuary was a "specific bequest" and therefore obligated under article VIII to share the tax burden, then (absent consideration of any tax benefit from a spouse's elective share which [*8]right presumably may have been waived) Ms. Okin's residuary in turn would have absorbed about 70-80% of the estate taxes. In that event, a major portion of the monetary bequests would not have been consumed by taxes as she had then argued. Her contrary argument now is another example of her questionable shifting of positions throughout this proceeding.
Ms. Okin's testimony that decedent wanted the estate taxes to be shared by all bequests "across the board" could easily have been accomplished by omitting any tax clause as that would have automatically occurred by virtue of the provisions of EPTL 2-1.8(c)(1).
Therefore to the limited extent that Article III of this Will might need judicial construction, it is clear and the Court so finds, that the last sentence thereof, which purports to give all the "residue and remainder" to Ms. Okin does not constitute a "specific disposition," or as this Will would characterize such a gift, a "specific bequest." Not that either term needs much clarification, but "specific disposition" is defined in EPTL §1-2.17 as "a disposition of a specified or identified item of the Testator's property." A residuary disposition is not a specific disposition (see Estate of Borrometi 238 AD2d 416, 417). The distinction between a "specific disposition" and a "residuary disposition" is not only crucially important in interpreting this Will, but it generally is also of singular importance if the provisions of EPTL §13-1.3(c) have to be applied to determine the order of priority in which different dispositions abate for the purpose of paying certain estate obligations.
Notwithstanding this common sense distinction, Ms. Okin argues with the same inherent contempt for this Court shown when she suggested that she was not the draftsperson, that the residuary provision, of which she is the sole beneficiary, was intended as just another "specific bequest."
Again, the language of the Will is clear and the Court finds that the residuary disposition is not a "specific bequest." Therefore, it does not begin to share the estate tax burden until the bequests labeled "specific" have first been depleted. The result is that the "specific bequests" in Article III become ephemeral as all $855,000 of such bequests, (excluding the specific devise to Ms. Okin of decedent's interest in a residence which gift is "tax free") are called on first to satisfy the $2,000,000 plus estate tax obligation. The final result is that Ms. Okin will receive virtually all of the decedent's estate in the form of the devise of Pat Coviello's partial interest in a residence and, after payment of the balance of estate taxes and administration expenses, a net residuary disposition of between $4,000,000-$5,000,000 dollars.
The Court notes that absent the language employed by the draftsperson in Article III, these dispositions totaling $855,000 in cash would not be classified as "specific," since they would otherwise be defined as "general dispositions" under EPTL §1-2.8. However, the draftsperson began Article III by identifying "the following [12 gifts as] specific bequests," and then concluded after the last of these bequests that preference be given to "bequests to pay for school and for my brother, John F. Coviello...over other specific bequests." Therefore, since the language employed in the subject Will identified these dispositions as "specific" both before and after they had been listed, the intent is clear. That intent must be followed (Matter of Jones 38 NY2d 189, 193; see 39 NY Jur 2d, Decedent's Estates §888).
(f) the usual "common disaster" clause also contains a somewhat unusual twist since it concludes with the provision that any beneficiary who dies "before the conclusion of the probate of this estate shall be deemed to have predeceased me" (emphasis supplied). While Ms. Okin [*9]would argue that "probate of this estate" is synonymous with "probate of this Will", such argument runs contrary to the modern usage of the former phrase which now is often used to refer to "the entire estate administration process, from the offering of the Will for probate through the settlement of the estate" (Vol. 1, Harris 5th Edition New York Estates: Probate, Administration and Litigation §6:1). Ms. Okin's attorney, Mr. Frishberg, who allegedly advised decedent and then supervised the execution of the Will, was unaware of this modern usage, as was Ms. Okin. Therefore, it is unlikely that decedent knew that if this clause was construed to mean until the estate administration had been completed, all his beneficiaries (including Ms. Okin) were and continue to this day to be at risk of losing their testamentary gifts should she or he die.
The above analysis is intended to be more than an exercise in semantics for the evasive testimony of Ms. Okin and her attorney on this issue is just further evidence that Pat Coviello could not have understood the meaning of the propounded instrument if neither the draftsperson nor the alleged independent attorney understood the possible implications of this and other clauses.
(g) One other anomaly in the subject Will is worthy of note. As a restriction on the ten so-called "specific" monetary gifts totaling in excess of $855,000, this Will provides that:
"The following bequests shall be paid when the estate has the cash to do so up to twenty years after my death." (emphasis supplied)
The first two bequests which follow for the benefit of decedent's adopted daughter and his grandson are designated "to pay for school in trust." Since both of these beneficiaries were at or approaching college age when the Will was executed, any option giving the executrix Ms. Okin, who is also the trustee, authority to defer funding these trusts, let alone for "twenty years," is inherently contradictory.
Spelling, Grammatical and Contextual Errors
Given decedent's penchant, as related by his longtime attorney Mr. Lipman, for extremely close scrutiny of documents, at times resorting to the use of a magnifying glass according to the testimony of Heather Shields, his office manager, it is difficult to believe that decedent had read this version of the propounded Will. If he had read this three-page document "extremely careful[ly]" as Mr. Lipman described, he would have noticed at least some of the following:
as previously noted, on the fifth line of the first page, the middle name of his daughter Angela is incorrectly stated as "Jean" rather than Elizabeth.
also on the first page, the second clause in Article III misspells Cedar Road as "Ceder Road;" leaves out the "s" from the hamlet of "Highland "Mill[s];" and by its language implies that the residence devised therein to Ms. Okin as "my house" was his house alone. In fact, decedent held but a partial interest in that property which previously had been his parent's residence.
as previously noted, on the second line on the second page, among the general dispositions of cash (labeled "specific bequests") in Article III, his daughter Angela's middle name Elizabeth is again listed incorrectly as "Jean."
midway through the second page, Article IV. B. is grammatically incorrect as it reads "...even though one of my executor [sic] may be such person."
in Article V. B., what should be the word "repair" of property is misspelled as "repaid" and the personal pronoun "I" is left out of the phrase "...to retain any investments which [I] may own at my death..."
again, at the top of page three in Article V. C., reference is made to a "successor Executor under the foregoing provisions of this Article," when no successor executor had been named anywhere in this document.
in Article VII the simultaneous death clause, the wording "...who dies first" is grammatically incorrect.
in Article VIII, some word or words to reflect a singular person or entity, such as "alone" or "acting alone" is missing from the phase "If any person or entity [sic], or in conjunction with any other person or entity... contest"
Advice from an Independent Attorney
In January 2004 Pat Coviello had ongoing professional relationships with two attorneys. Alan Lipman, Esq. had been his attorney in real estate matters for over 40 years and continued to represent decedent in a long-standing project to develop a multimillion dollar subdivision in Monroe, New York. Mr. Lipman had prepared prior Wills for Pat Coviello as recently as 1999. Mark Stern, Esq. was also representing Pat Coviello in a tumultuous contested divorce throughout 2003 and in 2004 until Mr. Coviello's death on May 4, 2004. Mr. Stern, a former law clerk to a prior Surrogate of this County frequently appears in probate matters in this Court. Yet, rather than seek the advice of either of these experienced independent professionals with whom he had ongoing relationships, the attorney ostensibly chosen by decedent to provide independent advice with respect to the Will drawn by Ms. Okin was Ms. Okin's own attorney, Neal Frishberg, Esq.[FN3]
Decedent had very briefly been represented by Ms. Okin's attorney in his divorce action before quickly deciding to substitute Mr. Stern as his attorney of record. Mr. Frishberg it would turn out had little experience with the more substantive aspects of testamentary dispositions. At that time he was not familiar with the nature of a will's estate tax allocation clause or with the Putnam inference of undue influence which would certainly arise under the circumstances presented to him on January 13, 2004. Before Ms. Okin and decedent walked into his office on January 13, 2004, Mr. Frishberg had not even seen the Will prepared for Pat Coviello by his client, Ms. Okin. It is fair to conclude that Mr. Frishberg was also not familiar with the inference arising under Matter of Henderson 80 NY2d 388 if a testator leaves an unusually large bequest to her or his attorney without having a meaningful consultation with an independent attorney. It did [*11]not occur to Mr. Frishberg to ask his client to leave his office so that he could review with decedent the provisions of this document which he "suspected" had been prepared by Ms. Okin. To the contrary, Ms. Okin sat next to decedent for about an hour as decedent and Mr. Frishberg reviewed a Will which either by design or peculiar coincidence contained both a somewhat stealthy residuary clause favoring the draftsperson and a tax allocation clause which eliminated $855,000 in specific bequests to, among others, decedent's children, grandson and brothers. Ms. Okin denies providing any advice during this conference, a questionable denial given the evidence of her constant intrusions into Pat Coviello's conferences with his own attorneys and her admission that she already had guided decedent through a number of prior revisions to this Will. Mr. Frishberg did allow that Ms. Okin kissed decedent a couple of times during this conference. He did exclude her from the Will signing ceremony itself.
When decedent raised a question about this Will and expressed a desire to make changes to it immediately after it had been signed, he was advised by Mr. Frishberg that he could not make changes to that document but was apparently not advised of any options available to accomplish his wishes. This exchange with the attorney obviously reflected some degree of confusion in decedent's mind about the provisions in the document he had just signed. The nature of the provisions decedent wished to change are uncertain, although Ms. Okin has suggested that they were trivial matters. The Court finds the comments of Ms. Okin not worthy of belief. Unfortunately, Mr. Frishberg did not make any notes with respect to the conference, nor with respect to decedent's desire to make changes.
It is noted that Mr. Frishberg did not ask decedent any questions and in particular made no inquiry with respect to the extent of decedent's assets. Mr. Frishberg had practically no specific recollection of discussing any of the peculiar provisions of the Will.
Mr. Frishberg testified that he assisted with the execution of this Will as a courtesy to both Ms. Okin and Pat Coviello and did not submit a bill for his services. There is no question that he had just represented Ms. Okin in a support matter and was representing her in custody proceedings as well as landlord-tenant matters. Mr. Frishberg zealously represented Ms. Okin in this proceeding until he was disqualified along with Mr. Stern by this Court's order on February 17, 2005.
Based on the above evidence, it is difficult to even suggest that decedent had received the advice of an independent, disinterested attorney.
Attorney-Draftsperson's Explanation for estimated $4,000,000-$5,000,000 Gift
As indicated, at the outset of these proceedings Ms. Okin offered a rather transparent denial of authorship of this Will in order to avoid any inference of undue influence. However, ultimately she would concede that she was as much involved as any attorney-draftsperson could have been in discussing this Will's provisions and providing advice to decedent at least during most stages of this Will's evolution, including its initial draft and for one, if not more, of its subsequent revisions. There are serious questions whether before entering Mr. Frishberg's office on January 13, 2004 decedent had seen, or whether Ms. Okin had ever discussed with decedent, the version offered for probate.
In any event, Ms. Okin, as the attorney-draftsperson-beneficiary, was obligated to overcome the inference of undue influence by coming forward with a credible explanation why it is that she has become virtually the sole beneficiary of decedent's estate (see In re Putnam's Will [*12]257 NY 140). Additionally, under the circumstances of this proceeding "the crucial element of discrete independent representation by disinterested counsel" must also be established by Ms. Okin in order to overcome another inference of undue influence because Pat Coviello had "not receive[d] the benefit of counseling by an independent attorney and that [his] Will was essentially the indirect product of [his] discussions and relationship with [Ms. Okin]" (Matter of Henderson 80 NY2d 388, 394).
SCPA 1408(a) [Framed Issues 5 and 6]
There is an equally fundamental element underlying the concepts of both fraud and undue influence which has been established by clear and convincing evidence.
The proponent, Ms. Okin, has not satisfied this Court that this particular instrument was the "true expression of the Testator's wishes." Specifically, it has not been proven that the document signed on January 13, 2004 was either read by decedent or read to him on that date. Since a number of changes had been made to the document after Ms. Okin's secretary had prepared her final draft some months before, this Court is far from satisfied "with the genuineness of the Will and the validity of its execution" (SCPA 1408(a))
Indeed, Ms. Okin's own testimony reveals that this document sat in an envelope unread by decedent from sometime in the Fall of 2003 until the day it was signed on January 13, 2004, a period of at least two months. She also testified that Mr. Frishberg did not read the Will to the decedent. Mr. Frishberg acknowledged that he neither read the Will to Pat Coviello nor asked him any questions. Apparently, neither he nor Pat Coviello noticed and discussed the fact that the plain language of the tax allocation clause had effectively nullified the specific bequests to family members, especially to decedent's grandson with whom decedent had been especially close. This anomaly is all the more startling since his grandson, his daughter, Danielle, and decedent's brother, John, were given preference among the other so called "specific" beneficiaries listed in Article III. Yet, specific bequests to these preferred relatives turned out to be little more than a cruel joke once the tax allocation provision of Article VIII came into play.
Pat Coviello's November 2002 pour-over Will/Living Trust scheme made his wife his primary beneficiary for life with the remainder to his daughter, Danielle. No bequest had been made to Ms. Okin.
The acrimonious divorce proceeding may have constituted an obvious reason for decedent to have removed his wife as his primary beneficiary. However, it nevertheless appears that in some prior version of this very Will she may have received some bequest. Otherwise, why state on the first page that she "will be referred to as "my wife?" The estrangement with Danielle also formed a basis for decedent to reduce her bequest to $250,000 "for school in trust." However, the Court finds absolutely no rational basis for Pat Coviello to wish to use his tax allocation clause to eliminate his $100,000 gift to his brother, John, or his grandson, Justin. This result is all the more inexplicable with respect to Justin since in Article Six, §5(a)(3) of his 2002 Trust, only Justin was to receive a gift ($50,000) which was free of any "Death Taxes" upon Pat Coviello's death.
Since Ms. Okin testified that she had reviewed the Will with Pat Coviello through its various drafts, there is all the more reason to expect that Pat Coviello, an astute businessman, would have picked up some of these contradictions if the propounded document was the same [*13]document which he had previously read and/or reviewed with Ms. Okin at least twice before it was left to sit in an envelope unattended for some months before January 13, 2004.
Finally, in light of decedent's inability to read without glasses, the unusually small print and lack of identifying captions make it all the more unlikely that Pat Coviello knew the specifics of this document since neither Ms. Okin nor her attorney read it to him on January 13, 2004.
Statute of Wills (EPTL 3-2.1) [Framed Issues 1-3]
Only one of the attesting witnesses testified at the trial. The other witness who was absent from the State had signed a post-execution affidavit, but in making that affidavit had not been shown a court-certified photographic reproduction of the Will as mandated by SCPA 1406(2).
The above omission could have been fatal to proof of due execution under subdivision (a)(2),(3) and (4) EPTL 3-2.1. However, the testimony of Mr. Frishberg, the attorney who witnessed and supervised the signing ceremony, would seem to have satisfied the above statutory requirements (see In re Ziele 242 AD2d 576, 41 NY Jur 2d Decedents' Estates §1771).
Accordingly, the proponent has satisfactorily answered the first three framed issues with respect to due execution.
The witnesses to the Will's execution also satisfied the Court that Pat Coviello was of sufficiently sound mind and competent to dispose of his estate on January 13, 2004. As hereinafter discussed, any omissions, mistakes and inconsistences in the subject Will were not the result of mental incompetency but rather the result of the fraud or undue influence exercised by the attorney-draftsperson during the preparation of this document.
Accordingly, the proponent has satisfied the Fourth Framed Issue.
Fraud and Undue Influence [Framed Issues 7-9]
Framed issues 7 through 9 are interrelated and depend on objectants satisfying their burden of proving that Ms. Okin had procured the propounded Will through fraud and/or undue influence. Subsets of the issues of fraud and undue influence involve the questions whether Pat Coviello actually knew the contents of this Will; whether this document expressed Pat Coviello's actual intentions; and whether the proponent satisfied her burden of overcoming the inferences of undue influences arising because she was the attorney-draftsperson and primary beneficiary.
The circumstances surrounding the preparation and execution of the propounded instrument are hopefully without precedent.
As indicated, since the evidence did not establish that Pat Coviello knew what was in this document, this Court's dissatisfaction with its genuineness is itself a sufficient basis to deny probate under SCPA 1408(a). However, there are other reasons to reject this Will.
The Putnam Inference of Undue Influence
Any person with whom a testator had maintained a confidential relationship (e.g. attorney, clergy, physician) and who has become the recipient of a significant gift under that testator's last will and testament, is obligated to explain the circumstances by which she or he came to receive that gift. Absent a reasonable explanation, this Court, based on all the circumstances, may infer that the gift was the result of undue influence exercised by that beneficiary upon the testator (Matter of Putnam 257 NY 140).
Ms. Okin's Putnam explanation is that since she and the decedent were living together [*14]and according to her, they were in love, therefore it was only natural for Pat Coviello to have gifted a major part of his estate to her.
This Court finds that public policy considerations should estop Ms. Okin from relying on such an explanation.
As indicated, Ms. Okin had been Christina's and Pat Coviello's attorney since she prepared a post-nuptial agreement for them in 1998. She prepared another post-nuptial agreement for them in 2000. The evidence establishes that in 2002 Ms. Okin proceeded quite quickly from counseling decedent and his wife how to protect the husband's significant assets (of which she must have gained knowledge) by means of a living trust and pour-over wills which she prepared in November, to dating him in December, to becoming sexually intimate with him in early January 2003 and finally, after Pat Coviello left his marital residence due in major part to his adulterous affair with his attorney, to inviting him to move in with her in May 2003.
At her clients' residence in November, 2002, soon after completing their estate planning, Ms. Okin, in the presence of decedent's wife and their child, had been openly sexually provocative with the husband in both dress and conduct. Earlier that month her conduct was equally inappropriate while having dinner with the Coviellos at a local diner. Her conduct in turn precipitated, at least in part, the wife's commencement of a divorce action in February 2003 founded on his adulterous affair with Ms. Okin.
There is no prohibition against and there certainly is precedent for a person making testamentary gifts to someone with whom she or he had become "romantically" involved (see e.g. Matter of LaMonica 199 AD2d 504). But, this case involves an attorney who intentionally seduced a client with the apparent objective of luring that wealthy man away from a marriage she must have known was vulnerable. While alienation of affection causes of action were banned by statutes in 1935, there remains a public policy against "illegal and morally reprehensible conduct" by an attorney (Code of Professional Responsibility EC 1-5; see also Penal Law §255.17 [Adultery]). Therefore, should not public policy prohibit Ms. Okin under these egregious circumstances from asserting her distorted definition of "love" as justification for receipt of a gift of a client's entire estate?
The attorney-draftsperson, Ms. Okin, initially asked this Court to somehow believe that her inexperienced secretary alone had drafted this document from notes given to her by decedent. (Notes which it was not office policy to retain.)
Next, in a continued and strained attempt to avoid having to respond to the Putnam inference of undue influence, with which Ms. Okin a reputed expert in New York probate matters, claims ignorance, Ms. Okin allowed that since this document was prepared in her law office by her secretary, she still might only be "deemed" to have been the draftsperson. Eventually that ruse was abandoned and Ms. Okin, contradicting her initial position, would soon testify, contrary to her secretary's testimony, that she had "suggested...this will form" to her secretary; that she had discussed beforehand the substance of the Will with decedent; that after the secretary typed the draft Ms. Okin herself "made certain corrections to it, or Pat made the corrections. You know, I don't remember who, whose writing it was, and we changed those provisions." She testified further that perhaps there had been a second revision. Thereafter, this document was left without an attestation clause or date for at least two months, unread by decedent as it sat on a dresser in the bedroom she shared with him. Ms. Okin would suggest that [*15]the draft of another Will which decedent's office manager estimated to be about ten (10) pages with larger type, which document was found in Ms. Okin's computer case in November 2003, may have made reference to real property other than "Ceder [sic] Road." That reference Ms. Okin testified had subsequently been deleted from the final version. When and by whom is uncertain. Finally, Ms. Okin testified that she had no knowledge how this propounded document was altered to obtain its date of January 13, 2004 and its attestation clause. However, Ms. Okin asks this Court to believe that decedent nevertheless knew what was in the final modification of this document offered for probate.
The common legal maxum "Falsus in uno" springs to mind. This Court finds that Ms. Okin consistently has been disingenuous with this Court and that much of her testimony was false and self-serving. The circumstantial evidence overwhelmingly supports the conclusion that, notwithstanding the nature of her relationship with decedent, Ms. Okin used his dependence on her for legal matters in general, and estate planning matters in particular, so that she could fashion a Will making herself the sole executrix, the sole trustee and virtually the sole beneficiary. Indeed, Ms. Okin created a Will which gave her, in her capacity as sole executrix, the option to defer, for up to 20 years, distribution of any portions of the specific monetary bequests which might survive the tax clause. Equally disturbing was Ms. Okin's ability to dissuade decedent from having his own attorney draw the Will. As further evidence of her control, she influenced decedent to wait months until she could accompany him and sit next to him as her attorney made at most only a cursory review of the Will which she had prepared.
Therefore, the Court concludes that the proponent, Ms. Okin, has not rebutted the inference that she utilized her fiduciary relationship as Pat Coviello's attorney to unduly influence him to execute the Will in question in order to favor her and her alone.
The Henderson Inference of Undue Influence
Whatever the nature of their personal relationship, the evidence established, as indicated, the fact that Pat Coviello had become unusually dependent upon Ms. Okin for making decisions in all his legal matters.
There is little direct evidence, except for the Will itself and a few snippets of credible evidence which can be gleaned from the conference Ms. Okin attended with decedent and her attorney, to establish the extent of control Ms. Okin exercised over decedent during the preparation and execution of this Will. However, from the circumstantial evidence it appears that the only advice and direction decedent received with respect to this Will was from Ms. Okin who testified how much Pat Coviello respected her legal ability, especially as an estate planner.
Just how influential that advice had been, assuming for the sake of argument that decedent both knew and understood the Will's provisions, is reflected in the terms of the document itself. If Pat Coviello knew and understood its provisions as drafted by Ms. Okin, then he would have to have intended the unnatural and bizarre result of creating generous provisions for his family in article III only to effectively nullify them by a tax apportionment clause in article VIII. The estate plan drafted by Ms. Okin thus called for a show of substantial bequests on one page followed by their eradication on a following page. The final result is that the estate planner wrote the final draft of this Will to insure that she would get, as she had stated, "my inheritance."
The Court finds that the attorney for the draftsperson was not independent of her, but rather was Ms. Okin's attorney who, on January 13, 2004, had just finished representing her in [*16]Family Court. Even if her attorney had been independent and had read the Will beforehand, Ms. Okin was confident that he was not sufficiently aware of the effects of the Will's provisions to offer any meaningful advice. Additionally, there could be no meaningful conference when his client, decedent's paramour and the attorney-draftsperson-primary beneficiary, was in the same room with him sitting next to decedent throughout their conference.
Therefore, the Court finds that due to his dependence upon Ms. Okin, and her obvious control over his legal affairs, decedent was not given an opportunity to obtain meaningful independent legal advice; that Ms. Okin used her control over decedent to delay execution of the Will for months to insure that she could be present during the whole pre-execution conference with her attorney; that there is no evidence that decedent had actually read or had read to him the final version of this Will; that at least some provisions of which he had become aware caused him to immediately express a desire to change his Will; that there is no evidence that he was even advised that he could revoke that Will then and there by destroying it if he was not satisfied with its provisions; that Ms. Okin's false denials about drafting this Will, indicate that she was not only fully aware that its provisions effectively made her the sole beneficiary, but that as the attorney-draftsperson she was also aware that she could not explain this complete radical departure from Pat Coviello's prior wills without denying that she drafted the Will; that her explanation for this multimillion dollar windfall, viz, that she and decedent were "in love", even if such an explanation was viable, does not overcome the Henderson inference of undue influence since Ms. Okin personally saw to it that Pat Coviello would not have the meaningful advice of an independent attorney.
After "scrutiniz[ing] with extreme vigilance" (Matter of Henderson p 394) the circumstances surrounding the preparation and execution of this Will and drawing the inference based on the absence of meaningful independent advice, this Court finds that there is more than a fair preponderance of evidence, indeed clear and convincing evidence, establishing that this Will was procured as the result of Ms. Okin's "undue influence." Therefore, the propounded document is found to be "essentially the indirect product of [Pat Coviello's] discussions and relationship with [Michele Okin]" ibid p 394.
Even if there had been credible evidence establishing that Ms. Okin had shown and explained the final version of this propounded Will to the decedent, this Court would find that there was clear and convincing evidence that the only rational basis for decedent to have agreed to its terms would have been Ms. Okin's intentional misrepresentation of the effect of the tax apportionment clause upon the gifts to his family. The uncontradicted evidence established the fact that Pat Coviello wished to leave certain monetary bequests to a number of people. He even stated a preference for bequests to his daughter, Danielle, his grandson, Justin, and his brother, John. Ms. Okin was the only person giving Pat Coviello advice. Therefore, unless she had fraudulently advised decedent that those bequests would have been effective, at least in part, it would have been irrational for decedent to sign this Will. Since the tax allocation clause prepared by Ms. Okin nullified these bequests, the only rational conclusion is that Ms. Okin had knowingly advised him to the contrary in order to induce him to execute a Will favoring only her. Because of her expertise in estate tax matters, there is no other probability for this bizarre result and the unusual format of the Will as well as the odd placement of the residual sentence, other [*17]than her deception.
Therefore, the objectants have satisfied their burden of proof as to Framed Issues 7-9.
As a result of Ms. Okin's fraud and undue influence, all bequests and the devise of real property to Ms. Okin shall be expunged lest she be permitted to profit by her own fraud and undue influence, or take advantage of her own wrong (Riggs v Palmer 115 NY 506, 511-512).
Partial Probate [Framed Issue 10]
There were several revisions of this Will. Ms. Okin denies knowing who made the last revision. Because of this uncertainty and because decedent appears to have wanted some undetermined "specific bequests" changed immediately after he signed this document, the Court finds that to admit any part of this document to probate would require the Court to speculate which bequests he might have intended to retain and which ones to remove or modify.Accordingly, the Court finds that the entire propounded Will should be denied probate.
On its own motion, the Temporary Letters issued to Angela Coviello shall continue until further order of this Court.
Settle decree on notice.
Dated: Goshen, New York
March 27, 2007____________________________
HON. ELAINE SLOBOD
Footnote 1:By decision/order dated February 17, 2005 this Court sua sponte directed Ms. Okin to assume the affirmative obligation of proving this Will even though she was not the petitioner because by its terms she would inherit most, if not all, of the gross estate of about $8,000,000.
Footnote 2:More of less by tacit consent, the Dead Man's Statute (CPLR 4519) was honored throughout this trial more in its breach than its observance.
Footnote 3:Ms. Okin told decedent's daughter, Lisa, that she had drafted this Will for her father in order to save the expense of paying for his regular attorney.