Matter of Abady

[*1] Matter of Abady 2009 NY Slip Op 51831(U) [24 Misc 3d 1240(A)] Decided on August 21, 2009 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2009
Sur Ct, Dutchess County

In the Matter of Probate Proceeding, Will of Robert Abady, Deceased.



2008-97315/B



TO:GELLERT & KLEIN, P.C.

Attorneys for Petitioner

ERICA KAYE

75 Washington Street

Poughkeepsie, New York 12601

DOUGLAS J. LEROSE, ESQ.

DePINTO, NORNES & ASSOCIATES, LLP

Attorneys for Objectant

MAYA L. SHERPA

445 Broad Hollow Road, Suite 200

Melville, New York 11747

REBECCA M. BLAHUT, ESQ.

McCABE & MACK, LLP

Attorneys for ISABEL WALCUTT and

DAVID WALCUTT, as Co-Guardians of

the Person and Property of ROBERT N.

ABADY

63 Washington Street

P.O. Box 509

Poughkeepsie, New York 12602

CHARLES E. STEWART, III, ESQ.

DANIELS & PORCO, ESQS.

Guardian Ad Litem for

ROBERTA N. ABADY

517 Route 22, Box 668

Pawling, New York 12564

GERARD J. PISANELLI, ESQ.

Attorney for Legatee

Two Cannon Street, Suite 303

Poughkeepsie, New York 12601

James D. Pagones, J.

The petitioner, Erica Kaye, moves for an order pursuant to CPLR Rule 3211(a)(1) and (7) dismissing certain objections to probate on the grounds that they fail to state a claim as a matter of law and upon documentary evidence. Ms. Kaye has filed a petition to probate the decedent's will dated April 12, 1999 and for letters of administration c.t.a.

Maya L. Sherpa ("Sherpa") filed verified objections to probate on or about February 19, 2009. Objections to probate, dated March 6, 2009, were filed by the decedent's daughter, Roberta Abady ("Abady"). The Sherpa objections allege the decedent was of unsound mind and memory and not mentally capable of executing the propounded instrument, that the will was not executed according to law, and that its execution was procured by the undue influence, fraud and/or duress by the petitioner upon the decedent.

The Abady objections are not discussed in this decision and order as they are not germane to the issues raised in the motion.

Maya L. Sherpa asserts that she is the surviving spouse of the decedent. She has filed a Notice of Election under EPTL §5-1.1-A in addition to the aforementioned objections to probate. The movant-petitioner alleges on this motion that Maya L. Sherpa lacks standing, even assuming that she is the decedent's surviving spouse, since she executed two prenuptial agreements waiving any rights she might have in the decedent's estate. The first prenuptial agreement is dated April 17, 2001. The second is dated May 26, 2006. The two agreements are mirror images of each other. The decedent died March 19, 2008. Ms. Sherpa opposes the instant application asserting that the two prenuptial agreements proffered by the proponent are invalid due to fraud in the execution and for lack of a proper acknowledgment.

FRAUD

It is well settled that in order to state a cause of action

based on fraud, there must be detailed factual allegations [*2]

supporting the claim. (Boyle v. Burkich, 245 AD2d 609, 610 [3d

Dept. 1997].) The objectant has failed to establish, on a prima

facie basis, that the decedent, at the time of the execution of

the two separate prenuptial agreements, made a false

representation as to a material fact to induce the objectant to

enter into the agreement to her detriment. (Abbate v. Abbate, 82

AD2d 368, 377 [2d Dept. 1981].)

This court must presume from her acknowledged signature on

two prenuptial agreements that Ms. Sherpa understood the nature

of the documents she was signing and intended to be bound by

their terms. (Cash v. Titan Financial Services Inc., 58 AD3d 785

[2d Dept. 2009].) There is no evidence before the court that Ms.

Sherpa was the victim of fraud either time she executed the two

prenuptial agreements herein. (Sunshine v. Sunshine, 51 AD2d 326

[1st Dept. 1976] aff'd 40 NY2d 875 [1976].)

The court also notes that objectant has not instituted the

requisite separate action in the supreme court to set aside

either of the prenuptial agreements.

ACKNOWLEDGMENTS

The objectant contends that both of the prenuptial agreements proffered by the proponent lack valid acknowledgments. Specifically, Ms. Sherpa notes that the April 17, 2001 agreement lacks the language "and acknowledged to me" in the acknowledgment of Robert Abady. That language is included in the acknowledgment relative to Ms. Sherpa on that document. The May 26, 2006 prenuptial agreement lacks the same language in both acknowledgments. The attorney who took the 2006 acknowledgment has recently filed an amended acknowledgment which contains the requisite language. It is settled that there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law, but is sufficient if it is in substantial compliance with the statute. (Weinstein v. Weinstein, 36 AD3d 797, 798 [2d Dept. 2007].) Even if this court were to determine that the 2006 prenuptial agreement was invalid due to an improper acknowledgment, which it does not, it is uncontroverted that Ms. Sherpa's execution of the 2001 prenuptial agreement was properly acknowledged and constitutes a valid waiver pursuant to EPTL §5-1.1-A(e). (In re Green, 16 Misc 3d 1113(A) [Surrogate's Court, Suffolk County 2007].)

This court finds that the proponent has established that Maya L. Sherpa waived all interest in the estate of Robert Abady and therefore lacks standing to file objections to the petition for probate. Therefore, it is ordered that the instant motion is granted and the objections filed by Maya L. Sherpa, as well as the Notice of Election, are dismissed. The remaining parties are directed to appear for a scheduling conference on September 24, 2009 at 10:00 a.m. Adjournments are only granted with leave of the court.

The foregoing constitutes the decision and order of the

Court. [*3]

ENTER

Dated:August 21, 2009

Poughkeepsie, New YorkHon. James D. Pagones, S.C.J.

081709 decision & order