In re Gallagher
| Citation | 2007 NY Slip Op 34612 (U) |
| Decision Date | 26 September 2007 |
| Docket Number | 4328/01 |
| Parties | Probate Proceeding, Estate of ANNE C. GALLAGHER, Deceased. |
| Court | New York Surrogate Court |
LOPEZ TORRES, S.
The following papers were considered in considering this motion for to dismiss and cross-motion for summary judgment in this contested probate proceeding:
Papers Numbered
Notice of Motion and Affirmation ...................................1,2
Affirmation in Opposition ...................................3
Notice of Cross-Motion and Affirmation ...................................4, 5
Affirmation in Opposition to Cross-Motion...................................6
Upon the foregoing papers, Catherine Bettman ("Bettman") and Catherine Giblin ("Giblin"), the objectants to the probate of the will dated May 9, 1997 (the "will") seek an order dismissing the probate petition or, in the alternative, partial summary judgment finding that the decedent lacked testamentary capacity when she executed the will. Bettman and Giblin are the decedent's first-cousins. Jean Gallagher Terrile ("Terrile"), the petitioner and nominated executor cross-moves for summary judgment dismissing the objections and granting probate to the will. Terrile is the decedent's niece.
The decedent died April 2, 2001 at the age of 84. She left a substantial estate, valued at $1,500,000. She executed the propounded instrument on May 9, 1997 (the "will"). Under the will, the decedent left $1,000 to St. Augustine Catholic Church and the residue to her husband, Peter Gallagher, and, if he should predecease the decedent, to Peter Gallagher's niece, Terrile, who was named executor.
Two years before the execution of the will, in 1995, the decedent suffered a stroke. In 1996, the decedent was seen by a local doctor, Dr. Anthony Scafa, who found evidence of the 1995 stroke. Additionally Dr. Scafa noted that as a result of the stroke, the decedent suffered from sensory and expressive aphasia that required her husband, Peter Gallagher, to provide her medical histoiy to Dr. Scafa.
The will was prepared by Steven Dom, Esq. ("Dom"). The three witnesses to the signing ceremony were Dom, Pamela Elisofon, Esq. ("Elisofon"), and Tracy Luna Dorn's secretary. Shortly after the will was executed, on June 4, 1997, Peter Gallagher died at their home. The decedent was unable to care for herself and was taken to the New York Methodist Hospital. She was subsequently transferred to the Menorah Home for the Aged.
On June 6,1997, Terrile filed a petition to be appointed as guardian of the person and property of the decedent. In her petition Terrile alleged that the decedent had suffered a stroke in 1995 which led to sensory and expressive aphasia and memory changes and that the decedent was unable to communicate her needs nor handle any activities of daily living. Terrile alleged that the decedent's husband had assisted the decedent in all her activities of daily living and that the decedent was unable to manage her financial affairs. Attached to the petition was a letter from Dr. Scafa. He stated that she could not manage her daily functions or communicate with anyone. He stated that the decedent was suffering from "permanent aphasia due to a cerebral infarction about 18 months" earlier. He noted that the decedent was unable to communicate her thoughts or take care of herself and recommended that she be placed in a nursing home.
In her petition, Terrile claimed to be the decedent's niece. In fact, the decedent's closest relatives were three maternal cousins, Bettman, Giblin and Vincent Scheer. Eventually, the cousins were cited in the guardianship proceeding. Bettman objected to the appointment of Terrile as guardian and the matter was set down for a hearing. At the hearing, Terrile and Dr. Frederick Gannon testified in support of the petition. From his review of the medical records and examination of the decedent, Dr. Gannon testified that the decedent suffered from irreversible brain syndrome. The decedent was seen by a court evaluator, who supported the petition.
Following the hearing, the court rendered an order and decision finding that the decedent was suffering from organic brain syndrome and dementia. As a result, she could not express herself verbally and there were times when she was "greatly disoriented." Matter of Gallagher, No. 105142/97, slip op at 36 (Sup Ct, Kings County September 29, 1997). Based upon the testimony presented at the hearing, the court found that the decedent was an incapacitated person as defined by Article 81 of the Mental Hygiene Law and was in need of a guardian of the person and property. Id. at 36. The court further found that the decedent required one-on-one attention, mandating placement in a medically assisted supervised home. Id. at 37.
Terrile had requested that the decedent be placed in the Carolton Convelescent Home in Fairfield, Connecticut, near where she lived, and the court, by order entered on November 25, 1997, granted this request and directed that she remain there pending further order of the court. Id. at 37. Terrile and Bettman were appointed co-guardians of the person of the decedent. Id. at 37. They were also appointed co-guardians of the decedent's property, but Terrile was given the authority to manage investments in light of experience in the investment field. In effect, Bettman's authority was limited to co-signing checks necessary for the decedent's maintenance and sale of the decedent's real property. Id. at 37-38.
The decedent died at the Carolton Convelescent Home on April 2, 2001. On November 2, 2001, Terrile filed a petition to probate the purported will and preliminary letters were issued to her. The probate petition incorrectly listed Terrile as the decedent's niece and sole distributee. On April 29, 2004, Bettman and Giblin filed objections to probate of the will. The probate petition, however, was not amended to list the decedent's actual distributees until November 5, 2004.
The objectants allege the will was not executed in accordance with the formalities required by law, that the decedent lacked testamentary capacity and that the execution of the will was procured by fraud and undue influence. In addition, the objectants challenge the qualification of Terrile to preliminary letters based upon the misrepresentation in the probate petition that she was the decedent's next of kin when she knew, as a result of the guardianship proceeding, that the decedent's three maternal first cousins were the next of kin. The objectants claim that this constituted a fraud upon the Court and ask that Terrile's preliminary letters be suspended pending a hearing. The objectants also challenge the jurisdiction of this Court to entertain the probate proceeding. She averred that because the decedent resided in Connecticut, and that pursuant to the order of the New York State Supreme Court, her New York property had been sold, she no longer had personal property within the State and therefore there is no jurisdiction in New York.
The parties thereafter commenced discovery. Dom and Elisofen testified at an examination before trial. Dom testified he had known Peter Gallagher ("Peter") and the decedent for over forty years. They had originally been friends and clients of his father, Francis Dom, Esq. Indeed, Francis Dom is named as alternate executor in the decedent's prior will. For a number of years, Peter and the decedent would visit Dom at his office. For a period of about two years prior to 1997, Peter told Dom he wanted Dom to prepare a will. Eventually, Dom told Peter to come in with his wife to prepare a new will.
The decedent and Peter wanted simple wills, leaving a small bequest to the local church and the remainder to each other. If they were not survived by a spouse, they wanted the residuary estate to go to Peter's niece, Terrile. Dom testified that both Peter and his wife confirmed that this is what they wanted as their last will. Peter wanted to include Terrile in his will, saying that she lived in Connecticut and was very helpful to them. Peter did most of the talking. The decedent would either agree or disagree with his statements. The decedent did not discuss her family. There was no discussion about the couple's health or medical history. As Dom summarized it, they had a clear idea of what they wanted in their will and Dom followed their instructions. Peter wanted the wills executed that day but Dom explained that it required time to prepare the documents. They arranged to come back the next day.
Dom testified that it was his practice to have wills executed in his office. Peter and the decedent returned to Dorn's office on May 9,1997 to execute their wills. Dom testified it was his practice to bring clients into his office and offer them coffee. Because the Gallagher's wills were parallel wills, they were executed together. He brought in the two witnesses. After introducing them to the Gallaghers, Dom told the witnesses that they were going to be witnesses to a will execution. He asked them if they wanted to be witnesses and they affirmed they did. He then read the will to the Gallaghers and went through the execution ceremony. He showed the respective instrument to each, asked them if this was their will. He asked them if they wanted the two potential witnesses to act as witnesses and they would execute the wills. Dom would then read the affidavit of due execution and the witnesses would sign the will and the affidavit.
He did not remember the decedent saying anything during the ceremony. Usually, her husband did the talking. He recalled that they thanked him for his help. Dorn testified that he thought they were both competent to execute wills.
At her examination before trial, Elisofon...
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