Matter of Blaukopf

[*1] Matter of Blaukopf 2009 NY Slip Op 50555(U) [23 Misc 3d 1103(A)] Decided on March 31, 2009 Surrogate's Court, Nassau County Riordan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2009
Surrogate's Court, Nassau County

In the Matter of the Estate of Adele Blaukopf, Deceased.



348307



The appearance of counsel are as follows:

Blodnick & Baum (attorneys for objectant)

1205 Franklin Avenue

Suite 110

Garden City, NY 11530

Seltzer Sussan Habermann Heitner & Bayroff (attorneys for petitioner)

100 Jericho Quandrangle

Jericho, NY 11753

John B. Riordan, J.

Before the court is a motion brought by the distributees of Adele Blaukopf for an order (1) vacating the decree of this court, dated October 31, 2008, which admitted to probate decedent's will dated November 8, 2006; (2) vacating letters testamentary issued to Daria Gravat ("Gravat"); (3) granting the distributees the opportunity to examine the attesting witnesses to decedent's will; (4) directing that objections be filed within a reasonable amount of time after the completion of the examination of witnesses; and (5) staying the executor from disbursing estate proceeds. The motion is opposed by Gravat.

The decedent, Adele Blaukopf, died on June 17, 2007, seven months after executing her will. Her husband predeceased her in 2001, and she never had any children, biological or adopted. Decedent was survived by six distributees: (1) Norman Kotzman, (2) Gitta Kotzman Haskin, and (3) Etta Kotzman Segal, who are the children of decedent's predeceased brother, Heinz Kotzman; and (4) Dan Kotzmann, (5) Ben Kotzmann, and (6) Kate Kotzmann, the children of decedent's predeceased nephew, Ron Kotzmann (and who apparently spell their surname with a double letter n). The six distributees reside in Australia.

The proponent and executor, Gravat, had been employed by decedent as a full-time caregiver who lived in decedent's home. Gravat originally filed a petition for probate on September 21, 2007, stating that the decedent left no distributees, surviving or deceased.

Paragraph 6(a) of the probate petition asks for the "name and relationship" of all persons with a "legacy, devise or other interest, or nature of fiduciary status." In Gravat's original probate petition, she stated that she was decedent's live-in companion and the beneficiary of decedent's entire estate, as well as the designated executor. The only other individual named by Gravat as a person interested in decedent's estate is Gravat's sister, Romania Gravat, a resident of Ukraine, [*2]who is listed as the successor beneficiary of decedent's entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been decedent's home, as Gravat's address. In response to question 8(a), which asks whether "any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to decedent," Gravat indicated that she, "petitioner," had a confidential relationship with decedent.

On the basis of the information provided to the court, preliminary letters issued to Gravat on September 25, 2007, with the court directing the submission of a family tree. On November 8, 2007, Gravat submitted an affidavit stating "I am not aware of any disinterested person capable of giving a Family Tree Affidavit ...." She further advised the court that decedent spoke occasionally with someone named Norman Kotzman and was visited by someone named Fred Ronis, but that she did not know whether decedent was related to these individuals.On February 25, 2008, counsel for various members of decedent's family advised the court by letter that decedent had executed a will in 2001 in which members of decedent's family and the family of her late husband were named as the beneficiaries and co-executors. A copy of the executed will was provided to the court, but counsel advised the court that the original signed document had not been located. Counsel stated that the family members intended to prove that the proffered 2006 will was procured by Gravat by means of fraud and undue influence, that decedent was not of sound mind or memory and was not capable of making a will in 2006, and that the will was not properly executed. A copy of the letter was sent to counsel for Gravat. The letter also accused Gravat of committing perjury, in that Gravat made sworn statements in her petition that decedent left no distributees, when, in fact, Gravat had actual knowledge of distributees and other extended family members, as set forth in greater detail below. Counsel for decedent's family demanded that the petition for probate be amended to reflect decedent's distributees.

Gravat filed a consent to change attorney, dated February 25, 2008. On April 10, 2008, Gravat filed another consent to change attorney, dated March 28, 2008. With the representation of this third attorney, Gravat filed an amended petition on April 18, 2008. The amended petition does not list Gravat as an interested person under paragraph 6(a), despite her interests under the will. This amended filing reflects that decedent left an alleged nephew, Norman Kotzman, and two alleged nieces, Gitta Kotzman (Haskin) and Etta Kotzman (Segal), all of whom are the children of decedent's predeceased brother, Heinz Kotzman. In response to question 8(a) as to whether any beneficiary under the will had a confidential relationship with decedent, in this amended petition for probate, Gravat checked "None."

On June 13, 2008, counsel for the family members, representing the three above-named alleged distributees and Dan Kotzmann, Ben Kotzmann and Kate Kotzmann, children of decedent's predeceased nephew, Ron Kotzmann, filed a notice of appearance and family tree affidavits signed by Etta Kotzman Segal, decedent's niece, and Jacqueline Austin (Levine), a niece of decedent's husband. According to the affidavits and the family tree, decedent had three brothers who predeceased her: Alexander (who had no children), Heinz, who predeceased but was survived by four children, one of whom died leaving no children, and Joachim, whose only son, Ron, died in 1991, leaving three children.

By letter dated July 28, 2008, Gravat's attorney asked counsel for the family to "consent to the extension of Preliminary Letters, recognizing the fact that the Preliminary Executor is not [*3]permitted to distribute any moneys to estate beneficiaries until such time as full Letters are issued." Gravat's attorney further indicated that he was trying to determine whether the family tree and affidavit of heirship provided to the court by decedent's family would be sufficient to establish heirship, and opined that a genealogist might be required. The family's attorney agreed to consent to the extension of preliminary letters.

Yet another amended petition was then filed on September 18, 2008, and in this last version, Gravat acknowledged the existence of the six alleged distributees. The court did not require that a supplemental citation be served on the newly acknowledged distributees; a notice of appearance on their behalf had previously been filed. Gravat's attorney did not provide counsel for the distributees with a copy of the second amended petition or advise him or his clients that it had been filed.

Gravat's attorney, in his affirmation in opposition to the instant motion, asserts that sometime in September 2008, he telephoned an associate of opposing counsel with the intention of inquiring whether objections were going to be filed, but despite the associate's assurance that she would call back the next day, the call was not returned. On October 24, 2008, Gravat's attorney had a decree granting probate with notice of settlement served personally on the office of counsel for the distributees. No objections were filed within five days of the date of personal service. On the basis of the information contained in the second amended petition, the 2006 will proffered by Gravat was admitted to probate on October 31, 2008, followed by the issuance of full letters on November 3, 2008.

The motion now before the court, also dated October 31, 2008, followed. Counsel's affirmation in support of the motion to vacate the decree argues:

"[T]his motion should be granted as the Objectants have previously indicated that they seek to avail themselves of the right to file objections to the probate of the will presented by the Petitioner, and further believe that proceedings pursuant to SCPA §1404 should take place prior to this Court making any determination on the objections to be filed by Objectants. This has not occurred as the Objectants were unaware of the filing of the Second Amended Complaint by the Petitioner as the same was never served on their counsel, and Objectant's counsel erroneously believed that the notice of Settlement served by the petitioner was for the re-issuance of temporary letters of Probate ...."

In opposition, Gravat's attorney argues that the motion must be denied, as it does not meet the standard established in 2008 by the Court of Appeals for vacatur of a probate decree. "[A] probate decree should be vacated only if petitioner can demonstrate facts constituting a substantial basis for challenging the proffered will and a reasonable probability of success on the merits of its undue influence claim" (American Comm. for Weizman Inst. of Science v. Dunn, 10 NY3d 82, 94 [2008]).

Opposing counsel argues that movants did not meet the requirements of CPLR 5015 for relief from a judgment or order, namely: (1) excusable default, (2) newly discovered evidence, (3) fraud, misrepresentation or other misconduct, (4) lack of jurisdiction or reversal, or (5) modification or vacatur of a prior judgment on which the order or judgment is based. Of the five categories of relief set forth above, counsel for movants is apparently arguing that the circumstances surrounding his failure to timely file objections to probate give rise to an [*4]excusable default. In support of this position, movants' counsel points out that Gravat's attorney (1) requested that movants' counsel consent to an extension of temporary letters, but then served him with a notice of settlement for full letters, without any prior notification of this change in strategy, and (2) neglected to send him a copy or give notice of the second amended petition filed with the court on September 18, 2008. Movants' counsel, who states that he was away from the office when the notice of settlement was received, claims that he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters, and therefore did not object. Movant further indicates that he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.

While the court respects the arguments made by movants' counsel, and agrees that these circumstances might be sufficient to establish an excusable default, the fact remains that movants' counsel took no court action on behalf of his clients at any point prior to making this motion for vacatur. At no time did counsel file objections or seek discovery; he merely stated an intent to do so. While movants' counsel is correct in saying that a copy of the second amended petition should have been sent to him, opposing counsel is equally correct in pointing out that the second amended petition contained no changes or information previously unknown to counsel, and movants' counsel had no reason to expect that it would. Opponent's failure to send a copy of the second amended petition to movants' counsel is not a jurisdictional defect in this case. Even if the court were to find that the above facts are sufficient to establish an excusable default, movant's counsel has failed to establish the second prong required for vacatur, namely, "a reasonable probability of success on the merits" (Matter of Urr, NYLJ, Mar. 25, 2008, at 33, col 6 [Sur Ct, Nassau County]). The court is not taking the position that there are no facts to vacate the decree of probate, but rather, that the facts to support vacatur have not been properly presented to the court.

However, while movants' attorney has failed to meet the standard for vacatur, the court is troubled by many of the facts on record.

First, Gravat's initial petition disclaimed any knowledge that decedent left surviving distributees. Gravat's alleged lack of knowledge is disputed by multiple documents in the court file. In his letter to the court dated February 25, 2008, a copy of which was sent to Gravat's attorney of record at the time, movants' counsel states that "Gravat has had numerous conversations with the above named beneficiaries, whom she knew to be decedent's relatives, during the several years she had been employed by decedent. These conversations have taken place over the phone and in person." In the family tree affidavit filed by Etta Kotzman Segal, she writes: "Daria Gravat has indicated that she knew of no distributees, including siblings, nieces, nephews and cousins, when she knew of the existence of family members and distributees, and had ongoing interaction with them ... Approximately three years ago I took a trip with my family to New York to visit decedent. Daria Gravat was present during most of the visits I had with decedent ... I can state with certainty that Daria Gravat knew of the existence of decedent's family and distributees, and where to contact us." In another family tree affidavit filed with the court, a niece of decedent's husband advised the court that another of decedent's husband's nieces "visited Daria Gravat shortly after the decedent's funeral, and asked Daria Gravat for family photos of some of decedent's family. I was on the phone with [the niece visiting] at the time ... Specifically, I have spoken with Daria Gravat on numerous occasions regarding the decedent. I [*5]can state with certainty, that Daria Gravat knew of the existence of decedent's family and distributees, and how to contact us." These assertions are not denied in the response filed by counsel for Gravat. Instead, it appears that Gravat submitted false information to the court, and only when challenged did she change her sworn statements.

Second, in paragraph 6(a) of Gravat's initial petition for probate, she accurately reflected her relationship with decedent as that of a "live-in companion." Gravat then deleted this information from her amended petition and second amended petition, the latter of which was the basis for the admission of the will to probate.

Third, in response to item 8(a) of the petition, "No beneficiary under the propounded will, listed in paragraph 6 or 7 above, had a confidential relationship to the decedent, such as attorney, doctor or clergyperson, except: ___ ", Gravat stated on her original petition that she was in a confidential relationship with decedent. However, in her amended petition and second amended petition, Gravat checked the box indicating that no confidential relationship existed. A legatee who is the decedent's sole live-in caregiver and who is otherwise unrelated to decedent is often found to have been in a confidential relationship with the decedent (Matter of Gordon v Bialystoker Center and Bikur Cholim, 45 NY2d 692, 698 [1978]; Ten Eyck v Whitbeck, 156 NY 341, 353 [1898]; Hazel v. Sacco, 52 AD2d 1042 [4th Dept 1976]; Matter of Neary, NYLJ, Dec. 19, 2005, at 40, col 5 [Sur Ct, Kings County], affd 44 AD3d 949 [2d Dept 2007], which involved a home health-care attendant; Matter of Slater, NYLJ, Feb. 11, 2002 at 28, col 3 [Sup Ct, Queens County], involving home health-care attendants). Had this question been answered accurately by Gravat, the court might have scheduled a hearing prior to the issuance of full letters (Matter of Putnam, 257 NY 140 [1931]). Where facts were obscured by a party wishing to avoid a Putnam hearing, the court, sua sponte, suspended preliminary letters testamentary (Matter of Grant, NYLJ, May 4, 2007, at 31, col 4 [Sur Ct, New York County]). In Matter of Arnold (125 Misc 2d 265, 269 [Sur Ct, Bronx County 1983]), the court addressed the relationship between caregivers and the aged. In doing so, the court expanded upon the Putnam concept of "judicial scrutiny for those in a confidential relationship with a decedent" by stating that "[t]he controlling principle appears to be not only whether the legatee's relationship with the testator was confidential, but was it one in which the dependence of the testator on the legatee was such that it presents more than a remote possibility of lending itself to intruding on the testator's freedom of action."

Fourth, aside from Gravat's own conduct, the court takes note of the fact that the 2006 will differs radically from the copy of decedent's prior will submitted by the attorney for the distributees, in which decedent bequeathed her estate to the members of her family and the family of her husband. There is no indication that anything occurred subsequent to 2001 that would have led decedent to her disinherit her family. Moreover, the 2001 will was prepared and its execution supervised by an attorney whose office was located in Nassau County, where decedent resided. In contrast, the 2006 will was prepared and supervised by an attorney in Brooklyn, New York. There is no indication how decedent came to use this attorney, and the affidavit of attesting witnesses does not reflect the location where the execution took place.

Finally, the 2006 will provides that in the event Gravat predeceases decedent, all of decedent's property will pass to Gravat's sister in the Ukraine. In Matter of Martinez (NYLJ, Sept. 19, 2007, at 33, col 4 [Sur Ct, New York County]), the court addressed a will which left everything to a person who had been in a confidential relationship with decedent. The court [*6]noted that "[w]hen the person alleged to have benefitted by the exercise of undue influence is in a confidential of (sic) fiduciary relationship with testator, an inference arises that her influence was undue ... requiring the beneficiary to explain the circumstances of the bequest." The court went on to say: "An additional factor to be considered is that the propounded instrument materially deviates from decedent's prior testamentary pattern. Under the penultimate instrument, which was found in decedent's apartment after his death, [decedent's life partner] or members of decedent's family are the beneficiaries. By contrast, the propounded instrument provides that if proponent predeceased, her "heirs" would take, although there is no indication that decedent had ever met such persons or even knew who they were" (Matter of Martinez, NYLJ, Sept. 19, 2007, at 33, col 4 [Sur Ct, New York County]).

Standing alone, any one of these facts might be insufficient to prove undue influence or fraud, particularly in view of the fact that to date no original copy of the 2001 will has been proffered. However, the combination of these factors casts doubt on the validity of the probated will. The court's "paramount concern is to admit only valid wills to probate" (Matter of Orlowski, 281 AD2d 422, 423 [2nd Dept 2001]; Matter of Kryk, 15 Misc 3d 1133A [Sur Ct, Monroe County 2007]). The court must be satisfied as to the genuineness of the will before admitting it to probate (SCPA 1408); in this case, the court's admission of the 2006 will to probate was based, in part, on substantive omissions and misstatements by the proponent.

Even after a will has been admitted to probate, the court may examine "issues concerning its validity and effect" (Matter of Carey, NYLJ, Oct. 10, 2008, at 37, col 5 [Sur Ct, Kings County]). Under the unique facts presented in this case, the court is not presently satisfied as to the genuineness of decedent's 2006 will. For this reason, the court (1) vacates its decree, dated October 31, 2008, which admitted to probate decedent's will dated November 8, 2006 (SCPA 209); (2) vacates letters testamentary issued to Daria Gravat; (3) will reissue preliminary letters testamentary to Gravat; and (4) stays the executor from making distributions or expending any funds she may have already distributed to herself. This matter will appear on the court's calendar for conference on April 20, 2009 at 9:30 a.m.

This is the decision and order of the court.

Dated: March 31, 2009

John B. Riordan

Judge of the

Surrogate's Court