Matter of Powers

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[*1] Matter of Powers 2015 NY Slip Op 50966(U) Decided on June 26, 2015 Surrogate's Court, Oneida County Gigliotti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2015
Surrogate's Court, Oneida County

Probate Proceeding, Will of Patricia E. Powers


For the Petitioner:

Donald R. Gerace, Esq.

For the Objectant:

Brian M. Dunn, Esq.

Guardian Ad Litem:

Carl S. Dziekan, Esq.
Louis P. Gigliotti, J.

The decedent, Patricia E. Powers, executed a Last Will and Testament on November 4, 2003. This Will was drafted by Donald R. Gerace, Esq., who also supervised its execution and served as one of the two attesting witnesses. Article IX of the Will nominates Attorney Gerace as executor. The testator died on April 24, 2014. On September 22, 2014 Attorney Gerace petitioned to have the Will admitted to probate and to have Letters Testamentary issued to him.

Decedent's sole distributee, i.e. her mother Patricia Dunn Powers, filed objections to the admission of the Will to probate by and through her attorney-in-fact James F. Powers, Jr.[FN1] The objections assert that actions taken by the testator nearly four years after signing the Will, as hereinafter described, worked to revoke it.

On the same day that the objections were filed, i.e. January 6, 2015, Objectant's counsel filed a motion for summary judgment sustaining the objections. In turn, on January 14, 2015, Donald R. Gerace, as proponent of the Will, moved for summary judgment striking the objections.

Prior to her death decedent was receiving periodic payments from a structured settlement, which apparently continue following her death. Article VI of the Will divides these settlement proceeds equally between the decedent's nieces, Shannon Patricia [*2]Johnson and Shelby Kaitlyn Johnson. Because Shelby is still a minor, a Guardian Ad Litem, i.e. Carl S. Dziekan, Esq., was appointed to represent her interests. The Guardian Ad Litem filed a written report on March 27, 2015 opining that the objections were not valid and consenting to having the Will admitted to probate. Oral arguments on the motions were heard on April 10, 2015.

The Will is typewritten but at the top of the first page there is handwritten, in red, the following:

This Last Will & Testament is no longer valid. After Much (2 years) of consideration, I have written a new one — enclosed & handwritten which should be honored until I get this handwritten one to my Lawyer to be "officially changed". e.g. .. typed up like this one. Patricia E. Powers 8/22/2007

There is no dispute among the interested parties that the handwriting and signature were placed at the top of the Will by the testator.

The handwritten note refers to a "new" Will "enclosed and handwritten". In an affidavit sworn to on December 23, 2014, James F. Powers, Jr. alleges that when he discovered the Will in decedent's residence he noticed the handwriting and signature of the testator, in red, on the top of the first page and also found attached thereto 12 smaller sheets of paper containing the testator's handwriting and signed on the last page by her.[FN2] Mr. Powers avers that after finding the Will and the attached sheets he first conferred with another attorney, Bartle F. Gorman, Esq., who advised him to turn all of the original documents over to Attorney Gerace. Mr. Powers did so.

It is significant that none of the testator's handwriting, placed only at the top of the first page of the Will, touched or obliterated any part of the words on that page. Also, even though in this handwritten note the testator stated that she intended to get the attached "new" Will to her lawyer to be "officially changed", she never did so despite the passage of nearly seven years.

In his affidavit sworn to on January 14, 2015, the attorney-proponent, Donald R. Gerace, states that he represented the decedent between 1995 until the date of her death. He also states that he had contact with her at least 2 - 3 times per year, including a conference at his office approximately four months before her passing to discuss her health and legal affairs. At no time did she indicate to him that she wanted to make out a new Will or that she had revoked the November 4, 2003 Will.

Objectant's counsel asserts that, by her actions described above, the testator cancelled the Will thereby causing it to be revoked pursuant to EPTL §3-4.1 (a)(2)(A)(i). That section reads as follows:

(2) A will may be revoked by:

(A) An act of burning, tearing, cutting, cancellation, obliteration, or othermutilation or destruction performed by: (italics and bold added)

(i) The testator.

As there was no burning, tearing, cutting, obliteration or other mutilation or destruction of the Will, the issue is whether the testator's actions, as described above, cancelled it. Objectant's counsel cites several cases in support of his contention that is does including In re Alger's Will, 38 Misc 143 (1902) [citing Warner v Warner's Estate, 37 Vt. 356]; In re Semler's Will, 176 Misc 687 (1941); and In re Parson's Will, 119 Misc [*3]26 (1922).

Objectant's counsel asserts that this case is most similar to the facts in In re Parson's Will, supra, wherein the Court found a cancellation. In that case the testator wrote these words across the face of the Will:

"This Will is hereby revoked Geo. W. Parsons."

The Court held that when words of revocation and signature are written directly across the face of the Will it obliterates or cancels other words, thereby expressing the intent of the testator to annul them. However, in this case the testator's placement of her handwriting on the Will makes it quite evident that she was avoiding contact with the words of the Will as none of her writing obliterated or cancelled a single letter.

In support of his motion to strike the objections, the attorney-proponent of the Will cites Matter of Akers, 74 A.D. 461, aff'd. 173 NY 620. In Matter of Akers the Will was written on ruled legal cap paper in the handwriting of the testator. On the first page of the Will, in the blank marginal space running lengthwise, was written in the handwriting of the testator the words:

"This Will and Codicil is revoked, Jany 14/96".

Under this line was the signature of the testator. Just as in this case, in Matter of Akers none of the words or the testator's signature were written across, nor did they come in contact with, any of the typewritten words of the Will. The Court in Matter of Akers ruled as follows:

"There can be no such thing as a cancellation of an instrument, either as a physical fact or as a legal significance, unless the instrument thereof is in some way defaced or obliterated".

As mentioned above, Objectant's counsel only asserts that the testator's conduct caused a cancellation of the Will. However, the Court notes that even if it were argued that the testator's handwritten note at the top of the Will revoked it by writing [See EPTL §3-4.1(a)(1)(B)], that contention would fail as it was not executed with the formalities required by statute.

Based on the foregoing, the Court finds that the actions of the testator, purportedly taken on August 22, 2007, do not constitute a valid cancellation, nor a written revocation, of the Will offered for probate in this proceeding. Accordingly, it is hereby

ORDERED that Objectant's motion for summary judgment sustaining the objections is DENIED and proponent's motion for summary judgment striking the objections is GRANTED. The Clerk of the Court is directed to issue a Decree striking the objections, admitting the November 4, 2003 Will of the testator to probate and appointing Donald R. Gerace, Esq. as executor.

This constitutes the Decision and Order of this Court.

Dated: June 26, 2015ENTER:

Utica, New York


Footnote 1:Mr. Powers is the son of the Objectant and provided the Court with a certified copy of a durable power of attorney, signed by Patricia Dunn Powers on August 17, 1990, appointing him as her attorney-in-fact and granting him full powers including authority over estate transactions.

Footnote 2:The attached sheets were not executed with the formalities required by Estates, Powers and Trusts Law ("EPTL")§3-2.1 and, as such, no party herein contends that it is a valid subsequent Will.

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