Matter of Lewis

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[*1] Matter of Lewis 2018 NY Slip Op 50599(U) Decided on April 18, 2018 Surrogate's Court, Kings County Ingram, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 18, 2018
Surrogate's Court, Kings County

In the Matter of Sylvan Lewis a/k/a Sylvan Franklin Lewis, Deceased.

Sylvia Marshall, Plaintiffs,

against

Gemma Williams, Individually and as Co-Trustee of the Sylvan Lewis Living Trust, Glenroy Williams, Individually and as Co-Trustee of the the Sylvan Lewis Living Trust, Marilyn Valere, as Distributee, Beneficiary and Executor of the Estate of Sylvan Lewis, Mortgage Electronic Registration Systems, Inc., Delta Funding Corporation, its assignees and successors in interest, Defendants.



Marilyn Valere, as Executor of the Estate of Sylvan Franklin Lewis, Plaintiff,

against

Sylvia Marshall, Gemma Williams, Andrew S. Weinberg, Lawyers Title Insurance Company Corp., Mortgage Electronic Registration Systems, Inc. (MERS), Delta Funding Corporation, Defendants.





4889/B-2007



For Plaintiff, Marilyn Valere: K. C. Okoli, Esq., 330 Seventh Avenue, 15th Floor, New York, New York 10001

For Plaintiff, Sylvia Marshall: Reginald Asiedu, P.C., 2432 Grand Concourse, Suite 508, Bronx, New York 10458

For Defendants, Glenroy Williams and Gemma Williams: Antonelli & Antonelli, Esqs., 225 Broadway, Suite 1200, NY, NY 10007
John G. Ingram, J.

In the above-entitled matters transferred from the Supreme Court in an Order dated March 18, 2014, Sylvia Marshall (hereinafter Marshall) and Marilyn Valere (hereinafter the executor) (referred to collectively as the plaintiffs) seek an order revoking a trust entitled the Sylvan Lewis Living Trust (hereinafter the Trust) and a deed dated June 2, 2007 (hereinafter the Deed) purporting to transfer certain real property located at 899 Pacific Street, Brooklyn, New York (hereinafter the subject property). Gemma Williams and Glenroy Williams (hereinafter referred to collectively as the defendants) have opposed the requested relief in an answer.

On June 2, 2007, the decedent purportedly executed the Trust agreement, the Deed and a will. Among other things, the Trust provides for the distribution of the subject real property to the defendants upon the decedent's death. The Deed is purported to attempt to transfer the subject real property from the decedent to "Gemma Williams, as Trustee, THE LIVING TRUST OF SYLVAN LEWIS".

On October 18, 2007, the decedent died survived by Marshall (his wife) and six children (including the executor). On June 19, 2009, the decedent's will dated August 22, 2006 was admitted to probate and letters testamentary were issued to the executor. On July 19, 2016, the court (Johnson, S.) denied probate to the instrument dated June 2, 2007 that was purported to be the decedent's last will and testament.

The above-entitled claims that were transferred from the Supreme Court, Kings County came on for trial.

Marshall and the executor argue that the Deed and the Trust should be invalidated upon the grounds of lack of due execution, lack of capacity, fraud and duress and coercion.

The record contains what appear to be copies of three instruments that bear the title of Sylvan Lewis Living Trust. The first instrument that was admitted into evidence as Defendant's Exhibit 1 consists of about 56 unfastened pages that includes certificates of acknowledgment for the decedent and Glenroy Williams. The second instrument that was admitted into evidence as Defendant's Exhibit 1A consists of about 58 unfastened pages including certificates of acknowledgment for the decedent and the defendants, an Affidavit of Trust (dated February 9, 2008 [subsequent to the decedent's death]) and identifies the trustees as "Sylvan Lewis and Glenroy William and Gamma William". The third instrument consists of about 57 fastened pages with certificates of acknowledgment for the decedent and the defendants. All of the proffered trust instruments contain certificates of acknowledgment indicating the execution date of June 2, 2007. The defendants did not identify which instrument that they are contending is the actual trust agreement of the decedent. However, testimony was only offered regarding the first instrument that has been admitted into evidence as Defendant's Exhibit 1. The court further notes that all of the aforementioned trust instruments appear to be photocopies.

The record further reflects that the Trust and the Deed came into existence as follows. The defendants and the decedent had a meeting with Jimmie L. Engram (hereinafter Engram), an [*2]attorney at the time, in the office of Paul McDavid (hereinafter McDavid), an accountant. Gemma Williams testified that she walked with the decedent to McDavid's office and met Glenroy Williams there. Engram arrived later with two women. McDavid further testified that the decedent appeared lively, very aware of who he was with and under no compulsion or pressure to be at the meeting. McDavid stated that he met the decedent only on that one occasion and spoke with the decedent for 10 to 15 minutes. Engram met with the decedent alone for about one-half hour. At some point during this meeting (with Engram, the decedent and the defendants), the Deed, the Trust agreement, a purported will and a power of attorney were signed by the decedent.

Due execution of a trust is governed by EPTL 7-1.17. The general rule is that the burden of proof in a proceeding to set aside a trust instrument is upon the objecting party as to all issues (Matter of Delgatto, 98 AD3d 975 [2d Dept 2012]). In order to be valid, a trust must: (1) be in writing; (2) executed and acknowledged by the person establishing the trust, (3) executed and acknowledged by at least one trustee (unless the grantor is the sole trustee) (4) in the presence of two witnesses (who also sign the trust) or in the manner required for the recording of a conveyance of real property.

An examination of the trust instruments that have been admitted into evidence as Defendant's Exhibits 1, 1A, and 1B shows that each instrument appears to have been executed by the decedent and at least one of the defendants in accordance with the statutory formalities. Each instrument contains the signature of the decedent and the defendants with certificates of acknowledgment for the decedent and at least one of the defendants. The Deed also has a certificate of acknowledgment annexed thereto.

A deed must be in writing and subscribed (signed at the end) by the grantor (General Obligation Law 5-703). In order to be effective as against subsequent purchasers or encumbrances, a deed must be acknowledged and recorded (RPL 291). A certificate of acknowledgment attached to a deed raises the presumption of due execution which presumption can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed (ABN Amro Mortgage Group, Inc. v Stephens, 91 AD3d 801 [2d Dept 2012]). The evidence rebutting the presumption created by an acknowledgment must be so clear and convincing as to amount to a moral certainty (Travers v Brown, 72 AD3d 979 [2d Dept 2010]).

The plaintiffs have failed to provide sufficient evidence to rebut the presumption of regularity created by the certificates of acknowledgment that are annexed to the Trust or the Deed. In fact, no evidence has been submitted to suggest that the signatures on the Trust and Deed are not the signatures of the requisite parties (including the decedent). The plaintiffs argue that the certificates of acknowledgment are improper and thus the trust agreements are invalid. The plaintiffs showed that the certificates of acknowledgment in the trust agreements indicate that the Trust instruments were executed in the county of the Bronx whereas the documents were actually executed in Kings County. Technical defects in the notarization of a document should not invalidate the official acts of a notary public (see Berney v Bosworth, 87 AD3d 948 [2d Dept 2011]). Thus the certificates of acknowledgment appear to be properly executed.

The plaintiffs also allege that the Trust and the Deed should be invalidated upon the ground that the decedent lacked the capacity to make the respective transactions. The burden of [*3]proof regarding the issue of mental capacity in a proceeding to set aside a trust instrument is upon the objecting party (Matter of Delgatto, 98 AD3d 975 [2d Dept 2012]). Competence to engage in a transaction is presumed and the objecting party must prove lack of competence (Id). In creating a trust, the grantor requires the capacity requisite with the instrument utilized to create the trust (see Matter of Acn, 133 Misc 2d 1043 [Sur Ct, Nassau County 1986]). Therefore, in order to create an inter vivos trust through a trust agreement, the grantor must have the capacity commensurate with the capacity necessary to enter into a contract (Id.). To be competent to enter into a contract, the grantor must comprehend and understand the nature of the transaction and be able to make a rational judgment concerning the particular transaction (Ortelere v Teacher's Retirement Board of the City of New York, 25 NY2d 196 [1969]).

With respect to a deed, as a general rule, a party's competence is presumed, and in order to set aside a transfer of property on the ground of lack of capacity, it must be established that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability (Buckley v Ritchie, 40 AD3d 794 [2d Dept 2007]). The party asserting incompetency bears the burden of proving incapacity (Feiden v Feiden, 151 AD2d 889 [3d Dept 1989]; Crawn v Sayah, 31 AD3d 367 [2d Dept 2006]).

The plaintiffs have produced testimony showing that the decedent suffered from certain ailments close to the time that the Trust and the Deed were executed. There was testimony from the defendants that showed that the decedent needed assistance due to his poor health. He had a home health aide who assisted him for at least four hours per day. He needed assistance with his toilet and other physical activities (including ambulating and bathing). He had weakened eyesight. The record further shows that the decedent, at the time of the signing of the Trust and the Deed was about 80 years old.

However, the court notes that mere advanced age, physical weakness and infirmity or disease or failing memory are not necessarily inconsistent with capacity (Matter of Beneway, 272 App Div 463 [3d Dept 1947]). Moreover, terminal illness alone does not negate capacity (Matter of Burack, 201 AD2d 561 [2d Dept 1994]). The court notes the absence of any documentation (such as medical records) that would substantiate the allegations that the decedent's physical and mental condition were so weakened as to rob him of the capacity to understand the nature of the aforementioned transactions of formulating the Trust and transferring the subject property via the Deed.

The plaintiffs further allege that the Trust and the Deed were the result of duress and coercion. In order to maintain a claim of duress, the aggrieved party must demonstrate that threats of an unlawful act compelled the decedent's performance of an act which he or she had the legal right to abstain from performing (Polito v Polito, 121 AD2d 614 [2d Dept 1986]). Duress entails precluding a party from exercising his or her free will (see Madey v Carman, 51 AD3d 985 [2d Dept 2014]). Black's Law Dictionary defines coercion as compulsion, force or duress.

Both duress and coercion are elements of undue influence (Matter of Meyer, 158 Misc 942 [Sur Ct, New York County 1936]). The party objecting to the instruments has the burden of proving undue influence in an action to invalidate a trust or deed (Matter of Delgatto, 98 AD3d 975 [2d Dept 2012]). This burden does not shift (Matter of Driscoll, NYLJ, July 22, 1998, at 32, col 3 [Sur Ct, Westchester County]).

When undue influence is practiced, the mind of the decedent must be so overpowered that the will of another is substituted for that of the testator. Undue influence usually involves a course of conduct. Undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence (Matter of Walther, 6 NY2d 49 [2d Dept 1981]; Matter of Burke, 82 AD2d 260, 269 [2d Dept 1981]).

To establish undue influence, objectant must establish that (1) the perpetrator had the motive to exercise undue influence; (2) the perpetrator had the opportunity to exercise undue influence, and (3) undue influence was actually exercised (see Matter of Burke, supra). The objecting party must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the decedent to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (see Matter of Capuano, 93 AD3d 666 [2d Dept 2012]).

The testator's physical and mental condition are critical factors in determining whether the pressure exerted amounts to undue influence (Matter of O'Brien, 182 AD2d 1135 [4th Dept 1992]). Similarly, the nature of grantor's relationship with the beneficiary is relevant to whether undue influence was exercised (Matter of Burke, supra).

Other factors that have been held to indicate the exercise of undue influence are the physical and mental condition of the decedent (Children's Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28, 30 [1901]; Matter of Callahan, 155 AD2d 454 [2d Dept 1989]; Matter of Gnirrep, 2 AD2d 404 [3d Dept 1956]; Matter of Streb, 247 AD 556 [4th Dept 1936]); whether the attorney who drafted the document was the decedent's attorney (Matter of Elmore, 42 AD2d 240 [3d Dept 1973]); whether the person who allegedly wielded undue influence was in a position of trust (Matter of Elmore, 42 AD2d 240, 241 [3d Dept 1973]), and whether the decedent was isolated from the objects of his natural affection (Matter of Burke, 82 AD2d 260 [2d Dept 1981]; Matter of Kaufman, 20 AD2d 464 [1st Dept 1964], affd 15 NY2d 825 [1965]).

The circumstances herein support a finding that the Trust instruments and the Deed were the products of undue influence. First, the record is clear that the decedent was in a weakened physical state. The defendants admitted that the decedent needed assistance with his daily activities during the time period when the Deed and the Trust agreement were executed. The decedent had a home health aide that attended him for about four hours per day, five days a week. Gemma Williams testified that she provided assistance to him, along with other tenants in the subject property, by preparing meals for him, bathing him and helping him with his toilet. Glenroy Williams testified that he provided assistance to the decedent by doing his laundry and providing transportation for the decedent, including regularly taking the decedent to church.

Of additional concern to the court was the retention of the attorney who drafted the Trust and the Deed. While the defendants adamantly stated that the attorney/drafter of the Trust and the Deed, Engram, was not their attorney, the record reflects that in fact, the defendants obtained and paid the attorney to draft the Trust and the Deed. The credible evidence shows that the defendants went to McDavid, regarding the preparation of their taxes and the deduction of certain expenses that were allegedly spent on the subject premises. McDavid informed them that since they did not own the subject premises, they could not take the deduction and would have to speak [*4]with an attorney. He then referred them to Engram, an attorney who represented him in his divorce. The defendants then met with Engram. There was no evidence that the decedent even spoke to the attorney/drafter prior to the drafting of the Trust and Deed to convey his intentions to counsel. Moreover, there was no evidence that the decedent conducted any other business with the attorney/drafter either before or after the execution of the documents. On the other hand, the record contains documentation of a number of checks that were issued from Gemma Williams to Engram for which Gemma Williams has proffered no explanation.

Furthermore, while the decedent did not appear to be isolated from other persons in his life, the defendants held a far more prominent position than merely landlord and tenant. The record reflects that Gemma Williams held a power of attorney for the decedent that was allegedly executed on the same date as the Trust and the Deed. Even prior to the power of attorney, the defendants held a confidential relationship with the decedent in that Gemma Williams performed numerous personal services for the decedent, including assisting him with his personal and business affairs.

Where there is a confidential relationship between the decedent and the beneficiary, the mere fact of a bequest permits an inference of undue influence and the beneficiary has the burden of offering an explanation. A close family relationship will offset an inference against the beneficiary (see Feiden v Feiden, 151 AD2d 889 [3d Dept 1989]). The relationship created by a power of attorney is a confidential relationship (Matter of Boatwright, 114 AD3d 856 [2d Dept 2014]). An inference of undue influence arises where the beneficiary was in a confidential or fiduciary relationship and was involved in the drafting of the instrument in question (Cordovi v Karnbad, 214 AD2d 476 [1st Dept 1995]).

Here, the defendants were instrumental in the preparation and execution of the Trust and the Deed. They obtained the attorney, they paid the attorney, they accompanied the decedent to the attorney's office on the date that the Trust and the Deed were executed.

As further proof that the decedent was overwhelmed by the will of the defendants, the decedent conducted this business on a Saturday. The record was full of testimony from witnesses that the decedent was a devout Seventh Day Adventist who faithfully celebrated his Sabbath from the eve of Friday to the eve of Saturday. Numerous witnesses testified that he refrained from performing any type of work on the Sabbath. He would spend the day in church, reading his Bible and in prayer and reflection. However, the record was also clear that at the time of the execution of the Trust and the Deed, the defendants worked during the week on Monday through Friday, and thus were unable to conduct this business during the week. Moreover, while there was testimony that Glenroy Williams provided transportation to the decedent, he was not the only person who assisted the decedent with transportation. The decedent had a close friend, Roderick Scanterbury (hereinafter Scanterbury), who the decedent confided in and spent time with. Scanterbury would also provide transportation to the decedent and there was no evidence that Scanterbury was unable to provide transportation during the week. In essence, it appears that the decedent took care of this transaction of creating the Trust and the Deed on a Saturday, in opposition to his standard practice of conducting no active business on the day that he celebrated the Sabbath, at the behest of the defendants.

Once a confidential relationship is established, the defendants must come forth with an explanation for the decedent's largesse sufficient to overcome the inference of undue influence. [*5]Marshall and the executor presented evidence that the decedent depended upon the defendants to assist him with his daily living that is evidence of a confidential relationship with the decedent. The explanation proffered by the defendants is that the decedent wished to leave them his share of the home because they assisted in taking care of him. However this explanation is insufficient. There were a number of people who assisted in taking care of the decedent and assisted him with his affairs. There is uncontroverted testimony from Marjorie Beckles (a tenant in the subject premises) who stated that she, at times, prepared meals for the decedent and assisted with his laundry. She even testified that her daughter, who was 11 years old at the relevant time, spent time with the decedent and would run errands for him. Moreover, another person who lived with the decedent during a number of years, June Singh, also testified that she assisted the decedent with his personal affairs and grooming. In addition, there was credible testimony that the executor, her husband and the executor's children would visit with the decedent. None of the aforementioned individuals other than the defendants are beneficiaries of the trust.

Essentially, the plaintiffs have demonstrated that the defendants engaged in a course of conduct that resulted in the overpowering and substitution of the decedent's will with their own. Accordingly, the deed and the Trust were the products of the undue influence practiced upon the decedent by the defendants and are thus invalid.

To invalidate an instrument on the grounds of fraud, the objectant must prove that the instrument, or certain provisions of it, were modified as a result of a false statement made to the testator (Matter of Bianco, 195 AD2d 457, 600 [2d Dept 1993]). Fraud must be proven by clear and convincing evidence (Matter of Gross, 242 AD2d 333 [2d Dept 1997], lv denied, 90 NY2d 812 [1997]).

While the Trust agreements that are in evidence, give the court reason for concern, the documents alone do not prove that fraud was committed upon the decedent. No evidence was produced that explained the reasons for the differing documents that each appear to contain the decedent's signature and certificates of acknowledgment. Moreover, there was no evidence that the substantive provisions thereof differed in the documents.

Accordingly, based upon the record, the complaint for an order invalidating the Trust and the Deed is granted to the following extent. The Deed and the Trust are hereby invalid upon the ground that said instruments are the products of undue influence practiced upon the decedent by the defendants. The Trust agreements that are entered into evidence as Exhibits 1, 1A and 1B dated June 2, 2007 are ineffectual to create the Trust entitled the Sylvan Lewis Living Trust. The Deed is ineffectual to vest in the Sylvan Lewis Living Trust any title or interest in the real property located at 899 Pacific Street, Brooklyn, New York. Any claim that the defendants and/or the Sylvan Lewis Living Trust, makes or may make to an estate or interest in the subject premises by virtue of the aforementioned Deed is void. The defendants and the Sylvan Lewis Living Trust and every person or entity claiming under the defendants or the Sylvan Lewis Living Trust are forever barred from asserting a claim to any estate or interest in and to the subject property or any part thereof under the aforedescribed deed after the filing of the Order that will subsequently be issued in this proceeding.

Upon the presentation of a certified copy of the Order (to be issued herein) and payment of all applicable fees to the City Register where the aforementioned deed and mortgages are [*6]recorded, the Register's Office in whose office such deed is recorded shall forthwith strike said deed from the records and make a notation on the records of the Register's Office to the effect that said deed is void.

This Court retains jurisdiction in this matter and may, upon notice to the attorneys for the parties who have appeared herein, add to this Decision (and the subsequent Order to be issued herein) such further provisions and directions as it may deem proper or necessary to carry out and to put into effect the provisions hereof and to completely establish the validity of the title to the subject property.

Upon the payment of any applicable fees, a certified copy of the order (to be issued herein) shall be recorded in the City Register.

The defendants shall file a formal accounting for all income (including, but not limited to rents collected) and expenses relating to the subject property from the date of the decedent's death within 60 days from the service of a certified copy of the order, to be issued herein, upon them.

Settle order.



Dated: April 18, 2018

Brooklyn, New York

HON. JOHN G. INGRAM

Acting Surrogate and Justice of the Supreme Court