Matter of Yuster

[*1] Matter of Yuster 2010 NY Slip Op 52344(U) [30 Misc 3d 1211(A)] Decided on November 30, 2010 Surrogate's Court, New York County Webber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2010
Surrogate's Court, New York County

Petition to Probate an Instrument dated June 8, 2005, in the Estate of Gerald Yuster, Deceased.



Motion to Vacate Decree Granting Probate of a will dated September 29, 1989 and Other Related Relief in the Estate of Gerald Yuster, Deceased.



825/06



Proponent was pro se

Muriel Yuster

Attorney for Objectant, Clay Yuster

Allen L. Finkelstein, Esq.

Pavia & Harcourt LLP

590 Madison Avenue, 8th Floor

New York NY, 10022

Troy K. Webber, J.

This contested probate proceeding was the subject of a three-day, non-jury trial. At the close of proponent's case, objectant moved to dismiss for failure to make out a prima facie case for due execution of the propounded instrument (EPTL §3-2.1). The following constitutes the court's findings of fact and conclusions of law to the extent relevant to that motion.

Background

Gerald Yuster died on October 28, 2005, at the age of 69, survived by his 43-year-old son, Clay Yuster (objectant). A 1989 will, which left decedent's entire $4.9 million estate to Clay and named him sole executor, was admitted to probate on March 7, 2006 (the "1989 will"). Almost three years later, decedent's ex-wife (Clay's mother), Muriel Yuster, petitioned for vacatur of the probate decree and for probate of an instrument dated June 8, 2005 (the 2005 [*2]will).[FN1] The latter is a one-page instrument leaving all of decedent's property "to Muriel Yuster, IN TRUST NEVERTHELESS" for the income benefit of Clay if and when Muriel sees fit, "in her sole discretion, not to be challenged by Clay." The instrument further provides that the trust may be terminated in Clay's favor, also in Muriel's "sole discretion," but only if and when Clay "demonstrates to [Muriel's] satisfaction that he is capable of handling the funds." If the trust is not thus terminated, the instrument makes no express provision for any trust remainder in Muriel's hands as trustee at Clay's death. Nor is there any provision for disposition of the estate if Clay predeceased decedent.

Clay filed objections to Muriel's petition, challenging the instrument on several grounds, including lack of due execution. As indicated above, the present post-trial motion is based upon the proposition that proponent's proofs do not establish prima facie that the propounded instrument was duly executed and that her petition should therefore be dismissed.

Evidence at Trial

At trial, proponent appeared pro se and objectant appeared by counsel.[FN2] Proponent called the two attesting witnesses, Benjamin Kaplan (who was also the attorney-draftsman) and Jose Garcia.[FN3]

Benjamin Kaplan testified that he graduated from law school in 1951, had known decedent for some 30 years, and had drafted several wills for decedent, including the 1989 will and 2005 will, although he acknowledged that he was not a "wills expert." Kaplan recalled that decedent had come to his office at some point in May 2005 to ask him to prepare a new will. Kaplan was unable to recall much else about the occasion, other than that decedent had told him he wanted to leave his property to proponent (who was, as Kaplan knew, decedent's ex-wife) as trustee for their son Clay.[FN4]

Kaplan did not testify to any discussion with or declaration from decedent as to why the latter now wanted Clay's benefits from the estate subject to proponent's unfettered discretion even though decedent apparently had been content for many years to have left the estate outright to Clay. He also did not testify as to why he did not inquire of decedent why he chose to name his [*3]ex-wife as trustee, with no named substitute or successor. Nor did the testimony establish whether Kaplan made any effort to determine decedent's intention as to the disposition of the estate if Clay did not survive him or the disposition of the trust remainder, if any, at Clay's death.

Mr. Kaplan did not recall having made any attempt to determine what property would be affected by the will. He acknowledged that he had not retained any notes that he may have taken in connection with the consultation.[FN5] Finally, he had no independent recollection of information that he might have relied upon in drafting the instrument.

As indicated above, Mr. Kaplan was unclear as to the date in May 2005 when decedent visited his office. It is undisputed, however, that decedent was admitted to the hospital on May 5, 2005, and remained hospitalized until his death some six months later. Kaplan recalled that he had brought his draft of the instrument to decedent on June 8, 2005, at the behest of Garcia, who told him that decedent was an in-patient at St. Vincent's Hospital and that he should bring a proposed new will "for Jerry to sign."

According to Kaplan, when he and Garcia entered decedent's hospital room, decedent was in bed (with proponent also present). Kaplan described decedent as "appear[ing] to be sick." Kaplan did not recall any discussion he might have had with decedent, other than to surmise that he had likely said to decedent, "I have the will Jerry that you ordered and I would like you to sign it." Kaplan further testified that he saw decedent sign the instrument. Kaplan did not testify, however, that decedent read the instrument, or that anyone else read the instrument to decedent, prior to that point. Nor did Kaplan testify that decedent thereafter made any statement acknowledging the instrument to be his last will.[FN6]

Kaplan did testify that he and proponent had spoken shortly after decedent's death about the prospect of an application to probate the 2005 will. However, he conceded that he had taken no steps to apprise the court of the existence of the 2005 will. Indeed, he conceded that soon after decedent's death, he signed a witness's affidavit in connection with the probate of the 1989 will, which referred to that instrument as decedent's "last will and testament."

Garcia for his part testified that he had driven Kaplan to the hospital on June 8, 2005. He further testified that he, Kaplan and proponent had been at decedent's bedside when decedent signed the instrument and that he saw decedent sign it. According to Garcia, decedent was in "perfect condition" (a curious proposition in light of the fact that, by June 8, 2005, decedent had been confined to a hospital for over one month and was suffering with terminal cancer). Garcia did not testify as to any discussion with decedent before or after decedent's signing of the instrument. Nor did Garcia testify that decedent read the instrument, or that anyone else read it to him, prior to decedent's signing the instrument. Although at trial, Garcia testified that he had heard decedent declare the 2005 instrument to be his last will, this testimony was contrary to his deposition testimony months earlier. Garcia acknowledged the discrepancy, but offered no explanation for it. Garcia also conceded that he had not resided at or rented the address he had [*4]identified as his residence when he signed as an attesting witness. He further acknowledged that he had for years been unemployed and lived with proponent rent-free.

Neither Kaplan nor Garcia identified the point at which they affixed their own signatures to the 2005 will, i.e., whether before or after they saw decedent sign it. Both, however, were cross-examined about two additional instruments (a health care proxy and power of attorney in favor of proponent) that purported to have been signed by decedent and witnessed by them. According to Garcia, the two other instruments and the 2005 will were witnessed by him and Kaplan at the hospital, but on three different days. Kaplan, however, did not recall acting as a witness to these other instruments, much less making three separate trips to the hospital to witness their execution.

This was the sum total of the testimony offered by proponent.

Conclusions of Law

The proponent of a will has the burden of proving that the propounded instrument was executed in strict compliance with the statutory requirements for making a will (EPTL § 3-2.1). The proponent must do so by a preponderance of the evidence (Matter of Halpern, 76 AD3d 429 [1st Dept 2010]; Matter of Falk, 47 AD3d 21, 25 [1st Dept 2007], lv denied 10 NY3d 702 [2008]; Matter of Watson, 37 AD2d 897 [3d Dept 1971]).

EPTL § 3-2.1 requires that a testator sign his will at the end thereof; that he affix such signature (or direct that it be affixed) in the presence of (or acknowledge it as having been thus signed to) at least two attesting witnesses; that he make known to the attesting witnesses that the instrument is his will; and that the attesting witnesses, within one thirty-day period, attest the testator's signature and publication, and sign their names and identify their respective residence addresses at the end of the will.

No self-proving affidavit was executed in support of the 2005 will (SCPA 1406). Nevertheless, annexed to the one page containing the substance of a will and bearing decedent's signature was a separate page that consisted solely of an attestation clause, subscribed to by Messers. Kaplan and Garcia, reciting that, "The above instrument was on the day hereinabove stated, signed, sealed, published and declared by the Testator, Gerald Yuster, to be his Last Will and Testament, in our presence, and we, in the presence of each other[,] have hereunto subscribed our names as witnesses." It is noted that an attestation clause in a testamentary instrument is prima facie proof of the facts recited in the clause (Matter of Falk, 47 AD3d at 25, supra; Matter of Price, 254 AD 477 [1st Dept 1938], aff'd 294 NY 700 [1938]). Moreover, a presumption of regularity arises where, as here, execution of the instrument was supervised by an attorney

(Matter of Halpern, 76 AD3d 429, supra; Matter of Schlaeger, 74 AD3d 405 [1st Dept 2010]; Matter of Spinello, 291 AD2d 406, 407 [2d Dept 2002]; Matter of Hedges, 100 AD2d 586, 587 [2d Dept 1984]). However, such a presumption is rebuttable.

Simply put, proponent has failed to establish that the 2005 will was executed in compliance with the formalities required by section 3-2.1 of the EPTL. This is not to ignore what was just observed above, i.e., that a testamentary instrument ordinarily can claim the benefit of a presumption of compliance with the statute where there is a lawyer supervising its execution and where it contains an attestation clause evidencing the observance of required formalities. This matter is not, however, the usual case. Indeed, the attesting witnesses' testimony here [*5]tended only to discredit, rather than support, the attestation clause which they had subscribed and the quality of the legal supervision.

To be sure, detailed or clear recall is not necessarily to be expected of an attesting witness years after the event. But that is more likely so where the witness is, in relation to the event, a detached stranger. However, neither of proponent's witnesses fall into such a category.

Thus, Garcia's inconsistent testimony as to publication must be evaluated in the light of his practical (albeit indirect) stake in the transaction, which in turn can be inferred from several facts: his financial ties with, if not complete dependence upon, proponent; his dubiously rosy estimate of decedent's physical condition on the date of execution (given decedent's circumstances at the time); and his misrepresentation of his residence address in subscribing the attestation clause.

As for Mr. Kaplan, his testimony hardly gives confidence that (as the draftsman and supervising lawyer) he was aware of the requirements that the instrument in question had to meet, much less that he took pains to assure compliance with each of them. A draftsman and supervisor conversant with such requirements would likely have had them in mind when recalling the event even some years later (see Matter of Leach, 3 AD3d 763 [3d Dept 2004]). This is not to say that Kaplan had never been familiar with what was required to assure the effectiveness of a testamentary instrument. It is only to find that his testimony concerning the particular instrument so undermines the substance of its attestation clause as to make the clause appear to be an empty recital of boilerplate. Indeed, Kaplan's witness affidavit in support of the 1989 will may be telling evidence of his own lack of confidence in the legal effectiveness of the 2005 will, of which he had been drafter, witness, and supervisor only a few months earlier.

Based upon the foregoing, the motion for vacatur of the decree admitting the 1989 will to probate and other related relief and the petition for probate of the 2005 instrument is denied. This decision constitutes the order of the court.

SURROGATE

Dated: November 30, 2010 Footnotes

Footnote 1:In an attempt to explain her delay in bringing the present proceeding, Ms. Yuster reported that she suffered serious injuries in January or February 2006 and was therefore unable to attend to any Surrogate's Court matter for the remainder of that year. No explanation was offered as to her inaction during the following two or so years.

Footnote 2:On December 1, 2009, Muriel's attorney, Philip Groner, withdrew as her attorney.

Footnote 3:As an accommodation to proponent, one of whose witnesses was not available to testify at the same time as the other witness, objectant agreed to testify out of order as his own sole witness. Among other things, his testimony was apparently intended to establish that, on the day before the 2005 will was executed, decedent had undergone major dental surgery involving substantial sedation that would have compromised his lucidity the next day. Such testimony was not supported by any medical record or any expert testimony. Proponent also failed to offer medical or other evidence to establish capacity, as was her burden to do. In any event, however, it is not necessary to determine the capacity issue in view of the dismissal of the petition on other grounds.

Footnote 4:The 2005 will substantially changed the prior testamentary scheme: under the 1989 instrument, proponent (although then married to decedent) was not named a fiduciary or arguably given a beneficial interest in decedent's estate.

Footnote 5:Kaplan testified that it was his practice to dispose of all notes and diaries at the conclusion of each calendar year.

Footnote 6:Kaplan did not claim to have retained a copy of the executed instrument, and did not offer any information about what was done with the original executed instrument after decedent signed it.