Matter of Kramer

[*1] Matter of Kramer 2012 NY Slip Op 51221(U) Decided on June 25, 2012 Sur Ct, Kings County Cutrona, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2012
Sur Ct, Kings County

Probate Proceeding, Will of Isaac Kramer, Deceased.



2334/08



Petitioners' attorney in this case is Daniel S. Steinberg, 1540 Broadway, New York, NY 10036.

Objectants' Attorneys who submitted papers on this motion

Allen Bodner, 45 Broadway, New York, NY 10006

Seth Rubenstein, 26 Court Street, Brooklyn, NY 11242

Anthony J. Cutrona, J.

The facts underlying these motions are not in dispute. The decedent died on February 20, 2008, at age ninety-four. He had no close relatives and died survived by sixteen cousins once removed. He lived in Brooklyn, New York, in his home at 624 Empire Boulevard, Brooklyn. In September, 2007, his health was declining. He had no close relatives and decided to stay with a first cousin once removed, Lea Cohen ("Lea"), and her husband, David ("David"), who lived in Ontario, Canada, so that they could care for his needs.

While there, his health continued to deteriorate. In December, 2007, the decedent was hospitalized for pneumonia. He was discharged that month. David and Lea's son, Steven Cohen ("Steven") is an attorney practicing in Toronto. He was deposed and at his deposition he testified that he suggested to his parents that the decedent give them a power of attorney to pay his bills if he was hospitalized again. Steven prepared a power of attorney based on a form he found on the internet. On February 16, 2008, the decedent agreed with the proposal. On February 20, 2008, Lea called her son and, later that day, Steven and his wife, Tracey, came to the house.

Steven showed the decedent the document he had prepared. The decedent reviewed it and asked that it be revised to create a testamentary gift to Lea. The decedent dictated the language he wanted added to Steven. Steven amended the power of attorney to add the language and brought it to the decedent to review. When the decedent indicated that he was satisfied, he called Tracey into the decedent's bedroom to have the document, entitled "POWER OF ATTORNEY FOR PROPERTY/TESTAMENTARY DISPOSITION" ("POA/TD"), executed. [*2]

Paragraph 1 of the POA/TD revokes any previous power of attorney and "revokes all former wills and other testamentary dispositions made by me." Paragraph 2 of the POA/TD appoints David and Lea as the decedent's attorney in fact for his property. Paragraph 3 of the POA/TD contains the testamentary provision at issue in this case. It reads,

This is a testamentary disposition made by me in favor of my first cousin once removed. . . . Upon my death, I give to Lea Cohen my property at 624 Empire Blvd., Brooklyn, NY together with all the contents therein. . . . I also give to Lea Cohen a fifty percent (50%) interest in all my other assets (currently consisting primarily of cash and securities held in my Raymond James account No.52431854 valued at approximately $16,000,000). For purposes of clarity, this clause shall not preclude Lea Cohen from claiming under applicable intestacy laws her share of those of my assets not contemplated herein.

Paragraph 4 of the POA/TD enumerates the powers granted to the attorney-in-fact. Paragraph 5, of the POA/TD is the last paragraph of the document, and dispenses with the requirement that the agents post a bond.

The decedent signed the document at the end and his signature was witnessed by two witnesses, Steven and Tracey.

On April 21, 2008, Lea and Steven petitioned this Court for letters of administration. The petition contained the standard clause that the petitioners alleged that the petitioners had no information concerning any will of the decedent and, upon information and belief, died without leaving any last will (Petition, Letters of Administration, paragraph 4).

On February 26, 2009, Lea, Steven and Jack Cohen, Esq. (Who is not related to Lea or Steven) (collectively referred to as the "petitioners") filed a petition to probate the POA/TD. The distributees other than Lea (the "objectants") filed objections to probate, alleging that the document was not duly executed, that the decedent lacked testamentary capacity and that the execution of the POA/TD was procured by undue influence.

Objectants move for summary judgment sustaining their objection that the POA/TD was not duly executed. The petitioners cross-move for partial summary judgment finding that the POA/TD was duly executed as a testamentary instrument pursuant to EPTL 3-.1(c).

Discussion

Summary judgment is a drastic remedy that will only be awarded where there is no triable issue of fact. See Barclay v. Denckla, 182 AD2d 658 (2d Dept 1992). The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Phillips v Joseph Kantor & Co., 31 NY2d 307 (1972); Alvarez v Prospect Hospital, 68 NY2d 320 (1986); Friends of Animals v Associated Fur Manufacturer's, Inc., 46 NY2d 1065 (1979). The failure to do so requires denial of the motion, regardless of the insufficiency of the opposing papers. See Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).

The court's function on a motion for summary judgment is not to resolve issues of fact but to determine whether such issues exist. See Dyckman v. Barrett, 187 AD2d 553 (2d Dept 1992). The court will afford the party opposing summary judgement every favorable inference and construe the facts in the light most favorable to the nonmoving party so as not to deprive that [*3]person of his/her day in court. See Russell v. A. Barton Hepburn Hospital, 154 AD2d 796 (3d Dept 1989); Robinson v Strong Mem. Hosp., 98 AD2d 976 (4th Dept 1983). Finally, the credibility of the evidence offered is not before the court on a motion for summary judgment since this is to be determined by the trier of fact. See Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 (1968). The question for the Court is which law applies in determining whether the POA/TD was duly executed.

EPTL 3-5.1

EPTL 3-5.1 governs where a will is executed in another jurisdiction. Under EPTL 3-5.1 the formal validity of a testamentary disposition of real property is determined by the law of the jurisdiction in which the land is situated (EPTL 3-5.1[b][1]). The formal validity of a testamentary disposition of personal property is determined by the law of the jurisdiction in which the decedent was domiciled at death (EPTL 3-5.1[b][2]). "Formal validity" is defined to mean the formalities prescribed by the law of a jurisdiction for the execution and attestation of a will (EPTL 3-5.1[a][3]).

Objectants argue that inasmuch as the decedent was domiciled in Brooklyn and the POA/TD purports to affect the decedent's interest in personal and real property referred to in paragraph Five is located in New York, New York law controls as to the formalities required to probate the POA/TD (EPTL 5-3.1).

To be a valid will under New York law, the instrument must be signed by the testator at the end, the signature witnessed by at least two witnesses and the testator acknowledge to the witnesses that the document is his will and that he requests the witnesses to witness his signature on the will. The rationale for requiring that the testator publish the fact that he is executing a will is to make sure that all parties realize that it is a testamentary instrument that is being executed.

At his deposition, Steven testified that no party made any comment that the document was a will during the ceremony. His wife testified at her deposition that she thought that she was witnessing a power of attorney.

The witnesses signed under a clause that stated, in pertinent part,

IN WITNESS of the grantor having signed this Power of Attorney For Property in our presence, we have signed in the presence of the grantor and in the presence of each other on the day and year first above written.

There is nothing in this language to indicate that the POA/TD was a testamentary instrument. The testimony of Steven and his wife establishes that the decedent never declared the POA/TD to be his will and that at least one of the two witnesses, Steven's wife, did not know that the document purported to be a will. They argue that, as a result, the petition to probate the POA/TD was not executed in accordance with New York's statute of wills and probate must be denied.

Petitioners cross-move for summary judgment admitting the POA/TD. They allege that the POA/TD was executed as a testamentary instrument in accordance with the law of Toronto, Canada. They argue that this is sufficient to probate the document under New York's choice of law statute under EPTL 5-3.1(c), which reads, [*4]

A will disposing of personal property, wherever situated, or real property situated in this state, made within or without the state by a domiciliary or non-domiciliary thereof, is formally valid and admissible to probate in this state, if it is in writing and signed by the testator and otherwise executed and attested in accordance with the local law of:

(1) This state; [or]

(2) The jurisdiction in which the will was executed, at the time of execution (EPTL 5-3.1[c]).

EPTL -5.3.1(c) has been described as a creating a broad basis for validating a will disposing of personal property, wherever located, or real property located within the State of New York (Cox-Arenson-Medina, NY Civ Prac, SCPA §3.04[2] at 3-25). Under 3-5.1(c), a will is valid under New York law if it was executed in accordance with the jurisdiction in which the will was executed at the time of execution (Matter of Wilson, 60 Misc 2d 290 [Sur Ct, Erie County 1969]).

Accordingly, as long as the will was in writing and signed by the testator, the New York requirements of EPTL 3-2.1(a)(2), (3) and (4), the fact that the testator did not declare to the witnesses that the document being executed was the testator's will or to explicitly request that they witness his or her signature need not be satisfied if such steps are not necessary for the valid execution of a will in the jurisdiction in which the signing occurred (Matter of Brower, 4 AD3d 586 [3d Dept 2004]).

The Succession Law Reform Act, of Ontario, Canada ("SLRA") requires that a testamentary instrument is valid if it is in writing (SLRA §3) and is: (1) signed at its end, (2) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time, and (3) two or more of the attesting witnesses subscribe the will in the presence of the testator (SLRA §4). There is no requirement under the law of Ontario that the testator publish the document to be his will or to require that the testator ask that the witnesses witness his signature to the will. The petitioners have submitted the affidavit of Suzana Popovic-Montag, Esq., a barrister and solicitor admitted to practice in the Province of Ontario, Canada, the testimony of Steven and Tracey Cohen establishes that the POA/TD was duly executed under the law of Ontario, Canada.

Objectants reply that the law of Canada requires that the formal validity of the instrument be determined under New York law, so that its execution must be in accordance with our procedures. SLRA's provisions governing the conflict of law is similar to EPTL 5-3.1. Thus, SLRA provides that the formal validity of a will disposing of personal property is governed by the law of the jurisdiction where the decedent was domiciled, and the formal validity of a will disposing of real property is governed by the law of the jurisdiction where the real property is located. Objectants argue that this requires that this Court look to New York law whether the POA/TD was duly executed. This argument ignores the fact that this Court has applied New York law, namely EPTL 5-3.1(c) to find that the Will, "was executed and attested in accordance with [the local law of Ontario, Canada, SLRA §4]" This satisfies New York's statute of wills.

Based on the above, the objectants' motion to dismiss the probate petition on the ground [*5]that the POA/TD was not duly executed is denied. The petitioners' cross-motion is granted and the objection that the POA/TD was not duly executed is dismissed. The Court makes no determination, at this time, as to undue influence, the decedents's testamentary capacity, etc. This decision and order is without prejudice to a subsequent motion[s] by objectants raising these issues.

This constitutes the decision and order of the court.

Hon. Anthony J. CutronaActing Surrogate

Dated: June 25, 2012