Matter of Stachiw

[*1] Matter of Stachiw 2009 NY Slip Op 52439(U) [25 Misc 3d 1236(A)] Decided on December 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2009
Sur Ct, Dutchess County

Mychajlo Stachiw a/k/a Mike Stachiw, Deceased.



96211/2007/D



George Hunter Roberts, Esq.

Covey, Roberts, Corliss &

Carmody-Roberts, LLP

Attorneys for Objectants

Christine Napoleon and

Oksana Stachiw

200 Katonah Avenue

Katonah, New York 10536

Richard R. Duvall, Esq.

McCabe & Mack, LLP

Attorneys for Proponent

Daria Stachiw

63 Washington Street P.O. Box 509

Poughkeepsie, New York 12602-0509

James D. Pagones, J.

Daria Stachiw, a former spouse of Mychajlo Stachiw, propounded a document purporting to be the last will and testament of Mr. Stachiw dated April 4, 2007. Mr. Stachiw (hereinafter "decedent") died on April 7, 2007. Daria Stachiw filed a probate petition in June, 2007 and an amended petition in November, 2007. In December, 2007, decedent's surviving sisters filed objections to probate.

The surviving sisters (hereinafter "objectants") moved to dismiss the probate proceeding alleging that decedent's last will failed to conform to the statutory requirements of EPTL §3-2.1(a)(4). The court denied objectants' motion by decision and order dated April 10, 2008, solely on the narrow ground that the propounded will complied with EPTL §3-2.1(a)(4).

Thereafter, Daria Stachiw (hereinafter "proponent") moved for summary judgment dismissing the objections of undue influence, fraud and testamentary capacity and for related relief. Objectants cross-moved for an oral examination of the attesting witnesses; an order that the attorney-draftsman of the decedent's propounded will produce the electronic files of prior drafts of the will; and for related relief. By decision and order dated December 12, 2008, the court, inter alia, granted proponent's motion to the extent of dismissing the objections of undue influence and fraud and denied the motion for summary judgment to dismiss the objection of lack of testamentary capacity.

After conducting additional depositions of two of the three attesting witnesses (the depositions of the attorney-draftsman and proponent had already occurred), objectants now move for summary judgment denying the will to probate based on decedent's lack of testamentary capacity and lack of due execution and to compel the attorney-draftsman (hereinafter "the attorney") to comply with the court's previous order directing electronic discovery of any drafts of the will. Proponent opposes the motion.

On April 3, 2007, decedent was admitted to Castle Point VA Hospital with end-stage liver disease after being transferred from Vassar Hospital. Upon admission, he was lethargic and [*2]confused and could answer simple questions only. His psychiatric assessment indicated poor judgment and insight. In addition, he was disoriented and forgetful (see Roberts affirmation, Ex C-1).

On April 4, 2007 at 11:45 a.m., decedent's heath care proxy, Daria Stachiw, signed a DNR. Although the meaning of the document was explained to decedent, his chart noted poor decisional making capacity. Ten minutes later, a psychiatric consult was done: "Felt does not have medical capacity but can sign legal documents per request of his health care proxy (ex-wife Daria Stachiw)" (id. at Ex C-2).

On April 4, 2007, the attorney of decedent's will, at the request of proponent, went to see decedent at the hospital to execute the will and a power of attorney naming Daria Stachiw as sole beneficiary and attorney-in-fact, respectively. The attorney testified at his deposition that he asked decedent's attending physician if he had had a psychiatric consult and that the physician answered in the affirmative.

The attorney testified that during the one and a half hours he was with decedent in his hospital room, decedent did not say a single word. After the attorney read the will to decedent, he asked him if this was his last will and testament and the decedent "nodded." The attorney acknowledges that he did not ask and decedent did not state that he knew what property was being disposed of in his will. The attorney also testified that he did not ask and the decedent did not state who the natural objects of his bounty were or that he understood that he was leaving all of his property to his former wife, Daria Stachiw. However, the attorney testified that after reading the will, he asked decedent if this is what he intended to be his will, and he nodded (id. at Ex D-1, pp 16, 19 -29, 38, 41).

The attorney further averred that the three witnesses were there "just long enough to witness him signing his Will, hearing him read his Will and signing it" (id. at p 32).[FN1] The attorney did not recall whether any of the three witnesses were present when he read the will, but testified that the three witnesses were there when decedent acknowledged the document and signed it (id. at pp 32-33).

The attorney executed an affidavit in March, 2008 in which he asserted that on April 4, 2007, he oversaw the execution of the will. Specifically, "[d]uring the execution, after last will was read to [decedent] and he indicated that it was his will and that he wanted to sign it and have his signature witnessed by the witnesses who were present, [decedent] placed his mark on the document in the presence of the three witnesses. The witnesses, in the presence of [decedent] and each other, signed and attested to witnessing the signing of the will on the last page of the document" (id. at Ex D-2).

Proponent was decedent's second ex-wife. She testified at her deposition that in March, 2007, she had contacted her ex-husband's attorney at his request, and she was present at the hospital when her ex-husband executed his will (id. at Ex E, pp 44-48). According to Daria Stachiw, decedent did not verbally discuss the will that day, but she did see him sign the document (id. at p 51). Decedent also signed a power of attorney that day naming his ex-wife [*3]Daria attorney-in-fact.[FN2]

Jacques Francois was a supply technician for Montrose Veteran's Hospital. On the day of the will execution he was engaged in housekeeping duties at Castle Point VA Hospital. Specifically, Mr. Francois was cleaning the bathroom in decedent's room when the head nurse called him over (id. at Ex F, pp 6, 8-9). At his deposition, he described the incident as follows (id. at pp 9-11): Q. Did you have any familiarity with the man that was in the room?

A. No, sir. Other than cleaning the area, I had none

whatsoever.

* * *

Q. After you were asked to come into the room, do you

recall what happened next?

A. Actually, I was already in the room. I was cleaning

the bathroom and I'm on my way out mopping the floor and

someone says, would you witness the signature of this

gentleman is putting on the piece of paper, and I said,

sure, I'll sign underneath, but that was it.

Q. Did you actually see him sign the paper?

A. To tell you the truth, I don't want to tell a lie, no.

What I'm remembering about it is that this gentleman was

just there and he was .., not comatose because he was

alive, but he was not really moving. I think someone

might have irked him on to like maybe sign the paper.

Q. Did someone put a clipboard in front of him?

A. ... Actually, someone putting a clipboard in front of

him with the paper and asking him to sign his name.

Q. Do you recall anyone reading the will? A. They didn't discuss anything. They didn't read anything, didn't tell me what it was. Didn't let me see[*4]

the paper, just asked me to sign it and never got a chance

to read what it was about or anything.

Q. And you signed it after the mark had been placed on

the signature line there?

A. Yes, sir, They asked me to sign after whatever they

did to get him to sign.

Q. Was he awake?

A. He was there. His eyes were open.

Q. Did he nod in your presence?

A. Actually, he never moved, he wasn't comatose, but he

was alive.

Q. Did anybody say anything to him in your presence?

A. Not really, that I can remember. Nothing forceful was

said.

Q. Did you read the affidavit part?

A. Sir, I didn't get a chance to read it. They told me to sign it and continue on. They never told me what it was or why they were asking me to sign it.

Mr. Francois did not remember the attorney being present, he did recall that Steve Williams (the second witness)[FN3] was there with him, but not the third witness, Janine Wentworth. He also recalled two other people there, but didn't know who they were (id. at p 12). While he was in the room, there was no discussion other than "asking me to sign" (id. at p 13). Mr. Francois explained that he did not read anything before signing because "[t]hey just asked me to sign and that was it. The papers were folded closed, I signed it and then was on to the next room" (id.).

Janine Wentworth, a social worker at Castle Point, testified at her deposition that she had not met decedent before April 4, 2007 (id. at Ex G, pp 6-7). She was with him and his ex-wife for about two hours that day. While Ms. Wentworth did not believe decedent, who was "quite lethargic" and dying, would have been able to understand any complex information, instruction [*5]or thought, she did believe he could understand very basic questions (id. at pp 9, 11, 12).

Either Daria Stachiw or the attorney told Ms. Wentworth that they wanted witnesses for decedent's will (id. at p 11). Since "it was not general protocol ... for a social worker" to witness a will, Ms. Wentworth took it upon herself to ask decedent several questions about the will to make sure he understood what he was doing (id. at p 12). In Daria's presence, she asked decedent several questions about the will.[FN4] He said "leave her stuff" or "leave it to her" which Ms. Wentworth understood to mean Daria (id. at pp 12, 17). Ms. Wentworth "[felt] that he understood this document and that's why [she] did witness it" (id. at p 12). Decedent had a "tough time" holding the pen so Daria held her hand around his hand, "but [Ms. Wentworth] did not feel that she signed for him" (id. at p 13).

Ms. Wentworth testified that Mr. Francois was not present while she was questioning decedent and only came in for the actual signature (id. at p 15). She did not know who the third witness was and did not recall him being there (id. at pp 15-16). Ms. Wentworth testified that for the one to two hours that she was there, the attorney was not alone with decedent, and she did not recall the will being read to him nor did she recall seeing either of the other two witnesses read the affidavit before signing it (id. at pp 22, 23-25). Ms. Wentworth did recall that decedent did not ask her to witness his will and that neither she, the attorney, nor Daria Stachiw asked decedent about his assets (id. at pp 29-30). Further, Ms. Wentworth did not recall the attorney asking decedent if he wanted the three to witness his will (id. at pp 37-38).

Decedent died three days later on April 7, 2007 at which time Daria Stachiw, the proponent of the will, pursuant to the power of attorney, transferred certain bank accounts of decedent's to herself (id. at pp 54-60).

It is well settled "[t]o obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form" (Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial (see Albouyeh v County of Suffolk, 96 AD2d 543 [2d Dep't 1983], aff'd 62 NY2d 681 [1984]). Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Objectants maintain that the will was not duly executed pursuant to EPTL §§3-2.1(a)(1)(C) and (a)(2); (a)(3) and (a)(4). As a threshold matter, the proponent of the will maintains that the issue of due execution has been previously decided by this court, and, therefore, objectants are now precluded from raising this issue. However, the court's previous determination was limited solely to whether the will's execution complied with EPTL §3-2.1(a)(4).[FN5] Consequently, the objectants' contentions regarding EPTL §§3-2.1(a)(1)(C); (a)(2); and (a)(3) are properly before the court on this motion. [*6]

EPTL §3-2.1 provides the specific formal requirements for the execution and attestation of wills. A proponent of a will offered for probate has the burden of proving by a preponderance of the credible evidence that the instrument was properly executed (see In Re Will of Falk, 47 AD3d 21, 26 [1st Dep't 2007], lv denied 10 NY3d 702 [2008]; see also In re Stegner's Will, 253 App Div 282 [2d Dep't 1938]). Where an attorney-draftsperson has supervised the propounded will's execution, there is a presumption of regularity that the will was properly executed (see Matter of James, 17 AD3d 366, 367 [2d Dep't 2005]). However, objectants have submitted sufficient evidence to overcome this presumption, and proponent has failed to raise a triable issue of fact regarding due execution. Indeed, the attorney's conclusory and self-serving testimony coupled with the testimony of the attesting witnesses clearly demonstrates a lack of due execution (contrast Matter of Finocchio, 270 AD2d 418 [2d Dep't 2000] [objectant failed to submit any evidence to overcome presumption of regularity]).

Specifically, the record is devoid of any evidence that the attorney complied with EPTL §3-2.1(a)(3). The assertion of Mr. Francois stands uncontradicted that decedent did not publish his intention (to Mr. Francois) that the document serve as his will or in any way declare that the instrument he was signing was his will as required by EPTL §3-2.1(a)(3)(see Matter of Estate of Pirozzi, 238 AD2d 833 [3d Dep't 1997]; see also In re Kenney's Will, 179 App Div 258 [2d Dep't 1917] [testator should declare in presence of two witnesses that the paper is his will and decedent should request the witnesses to whom the declaration was made to sign as attesting witnesses in his presence]). In fact, Mr. Francois was emphatic that he did not even know what document he was supposed to be witnessing. One minute he was mopping the bathroom floor, the next minute he was asked to witness a patient sign something. In addition, Ms. Wentworth specifically recalled that the decedent did not ask her to witness his will.

Furthermore, other than the attorney's conclusory, self-serving assertions in both his deposition testimony and affirmation, there is no factual support in the record that decedent signed the will in the presence of Mr. Francois or acknowledged his signature to Francois as required by EPTL §3-2.1[a][2]. In any event, "[s]ubscription or acknowledgment in the presence of the witnesses, and a publication of the instrument as a will, are two distinct acts and both are necessary" (Matter of Moeser, 42 Misc 2d 1017, 1019 [Surr. Ct. Erie County 1964]).

Moreover, the attorney's earlier affirmation is riddled with conclusory assertions, lacks any evidentiary foundation and contradicts his later deposition testimony (see Rosenblatt v Venizelos, 49 AD3d 519 [2d Dep't 2008][belated attempt to avoid consequences of earlier admission by raising feigned issue was insufficient to defeat summary judgment motion]) and, as a whole, appears tailored to comply with the statutory requirements by tracking the relevant statutory language (see e.g. Grossman v Wright, 268 AD2d 79 [2d Dep't 2000]).

The uncontroverted facts and circumstances regarding decedent's admission to the hospital on his death bed in an extremely incapacitated condition; the virtually simultaneous execution of a Do Not Resuscitate Order by the proponent of the will, a power of attorney in favor of the proponent of the will, and a will naming its proponent as sole beneficiary; the piece meal attempt to comply with the statutory requirements of will execution, including the shoddy manner in which the witnesses were hastily gathered; the absence of any information regarding the third attesting witnesses and the lack of any explanation as to why he did not offer any evidence to support due execution of the will lead the court to the inescapable conclusion that the [*7]proponent of the will, aided by decedent's attorney, rushed through the execution process without due consideration to decedent's medical condition, whether decedent could and did understand what was happening, and without proper regard for the particular prescribed requirements of will execution.

Consequently, the court finds that decedent did not execute the will propounded in accordance with the formalities required by statute, and, as a result, objectants' motion for summary judgment as to due execution is granted and the will is denied probate.

In light of the demonstrated failure to comply with EPTL

§§3-2.1(a)(2) and (a)(3), the court need not address objectants' further contention that proponent actually signed on the decedent's behalf, thus triggering the further requirement of EPTL §3-2.1(a)(1)(C). Moreover, given this court's finding on the threshold issue of due execution, the court need not address objectants' separate contention that decedent lacked the testamentary capacity to execute a will or objectants' continued request for extant discovery.

The foregoing constitutes the decision of the court. The matter is placed on the court's calendar for conference on January 14, 2010 at 9:30 a.m. to address all outstanding issues. Adjournments are only granted with leave of the court.

Counsel for the objectants is directed to submit a decree on notice within ten (10) days consistent with this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

December 7, 2009

ENTER

HON. JAMES D. PAGONES, S.C.J.

TO: Footnotes

Footnote 1:This is obviously a mistake as the attorney had earlier stated and the record supports that decedent would have been physically incapable of reading his will aloud.

Footnote 2:Notably, on April 4, 2007, within a two-hour time period, Daria Stachiw, acting pursuant to decedent's health care proxy, executed a DNR; requested of the medical staff that decedent execute legal documents; received an opinion from the medical staff that decedent was competent to execute legal documents; and was present when decedent purportedly executed a power of attorney naming her as attorney-in-fact and purportedly executed a will naming her as sole beneficiary.

Footnote 3:There is no indication in the record why Steve Williams, the second attesting witness, was not deposed.

Footnote 4:Ms. Wentworth stated that Daria Stachiw may have stepped out momentarily (id. at pp 9-10).

Footnote 5:Indeed, the court's decision could not have contemplated the other execution objections as the attesting witnesses had not yet been deposed at the time the decision was rendered.