In the Matter of Roy Gilmore

• Decision Date: 14 June 2011
• Citation: 87 A.D.3d 145,925 N.Y.S.2d 567,2011 N.Y. Slip Op. 05272
• Parties: In the Matter of Roy GILMORE, Sr., etc., deceased.Andrea Hofler, et al., nonparty-appellants;Angela Manning, et al., respondents.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 145

925 N.Y.S.2d 567

2011 N.Y. Slip Op. 05272

In the Matter of Roy GILMORE, Sr., etc., deceased.Andrea Hofler, et al., nonparty-appellants;Angela Manning, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 14, 2011.

Frances M. DeCaro, Bronx, N.Y., for nonparty-appellant.Malverick Hofler, Oshrie Zak, New York, N.Y., for nonparty-appellant Andrea Hofler (one brief filed).Vishnick McGovern Milizio, LLP, Lake Success, N.Y. (Bernard Vishnick and Avroham Gefen of counsel), for respondent Angela Manning.Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Donald J. Farinacci of counsel), for respondents Carol Bonita Gilmore, Roy L. Gilmore III, and Christina Gilmore (joining in the brief of respondent Angela Manning).REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL and SHERI S. ROMAN, JJ.LEVENTHAL, J.

A parent in New York State is under no obligation to leave any part of his or her estate to his or her children ( see McLean v. McLean, 207 N.Y. 365, 101 N.E. 178).¹ However, to address situations where a child is inadvertently left out of a parent's will because such child was born after the will's execution, the Legislature enacted EPTL 5–3.2. In this appeal, the petitioners Andrea Hofler and Malverick Hofler (hereinafter together the movants), who are nonparties in this probate proceeding, contend that they are the nonmarital, biological children of the deceased testator. They further contend that the testator only learned of their existence after he had executed his final will, and shortly before his death. On this appeal, we consider whether the Surrogate's Court properly determined that the biological children of a testator, born prior to the execution of a final will, are not entitled to be treated as adopted children under the caselaw-created exception to EPTL 5–3.2.

In June 1996, Roy Gilmore, the decedent, executed a last will. On January 13, 2007, the decedent died. Thereafter, Angela Manning, one of the decedent's children, as executor of the decedent's estate, offered the will for probate.

In a verified petition dated February 11, 2008, the movants asserted that they were born prior to the execution of the decedent's will and that the decedent did not know that they were his biological children. They alleged that, approximately 10 years after he executed his will, the decedent underwent DNA testing which revealed that he was their father. The movants further argued that the law and logic supported their application to be granted the rights of after-born children.

By notice of motion dated February 12, 2008, the movants, asserting that they were the decedent's nonmarital children, jointly moved, in effect, for summary judgment determining that they “are to be treated as afterborn children of the decedent pursuant to EPTL 5–3.2.” In an affirmation, counsel for the movants noted that, although the decedent was survived by 11 children, his will left his entire estate to Manning. According to counsel, although the movants were born prior to the execution of the decedent's will, the decedent did not know that the movants were his biological children until after the subject will was executed in 1996.

In support of their motion, the movants submitted an affidavit from Mary Jane Martin, the decedent's sister. Martin averred that the decedent acknowledged in January or February 2006 that he had recently learned that the movants were his children. Martin added that in December 2006, the decedent had introduced the movants to her “as his two children, whom he had recently learned of.”

In opposition, Manning acknowledged that the purpose of EPTL 5–3.2 was to guard against inadvertent or unintentional disinheritance. However, she argued that the recent amendments to that statute did not support the movants' contentions inasmuch as the Legislature chose to limit the definition of after-born children to just that, children born after the execution of a will.

In their reply papers, the movants reiterated their prior contentions that the term after-born, as employed by EPTL 5–3.2, can include children born prior to the execution of a will, but who are only established as children of a testator after the execution of a will, such as after-adopted children. The movants noted that a child adopted after the execution of a will, but born prior to the will's execution, is considered an after-born child under the pertinent case law.

In an order dated December 23, 2009, the Surrogate's Court found that the movants were not entitled to any rights under EPTL 5–3.2. The court noted that “the parties ha[d] consented to have the motion submitted assuming the truth of the movant[s'] allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.” The Surrogate's Court acknowledged that a child is generally entitled to after-born rights only if born after the execution of a will. The Surrogate's Court further acknowledged that the only exception to that rule is for a child adopted after the execution of a will, even if born prior to its execution. With respect to EPTL 5–3.2, the Surrogate's Court stated that it was “not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning,” as such conduct would constitute “trespasses by a court upon the legislative domain.” The movants appeal.

A review of nisi prius decisions is instructive. In Matter of Wilkins, 180 Misc.2d 568, 691 N.Y.S.2d 878, the Surrogate's Court, New York County, was presented with a matter wherein the deceased testator's nonmarital son, Michael, sought to inherit as a child born after the execution of the decedent's will. In Wilkins, the decedent's will was executed in 1965, Michael was born in 1969, and the decedent died in 1988. At a hearing on the issue of paternity, the decedent's friend testified that the decedent often referred to Michael as his son, and Michael's mother testified that the decedent was aware that Michael was his son prior to Michael's birth. The Surrogate's Court determined that Michael was the decedent's son and that the decedent openly acknowledged his paternity for the purposes of EPTL 4–1.2. Construing a prior version of EPTL 5–3.2, the Surrogate's Court found that the term after-born included a nonmarital child. The instant case, however, is distinguishable from Wilkins because the movants were born prior to the execution of the subject will, whereas the child in Wilkins was born after the execution of that will.

In Matter of Walsh (NYLJ, May 13, 1998, at 31, col. 6), a matter before the Surrogate's Court, Nassau County, the petitioner alleged that she was the nonmarital daughter of the decedent testator. The petitioner sought, inter alia, a declaration that she was entitled to inherit under the decedent's estate as if she was an after-born child pursuant to EPTL 5–3.2. The petitioner was born in 1964, the subject will was executed in 1984, and the decedent died in 1995. According to the petitioner, as a youth, her mother took her to see the decedent several times. In addition, the decedent was alleged to have visited the petitioner at school at least once, and had given her two cash gifts in 1991 to buy a home. Allegedly, the decedent also told various people throughout the petitioner's youth that she was the decedent's daughter. The petitioner sought to be classified as a nonmarital child pursuant to EPTL 4–1.2.

However, the Surrogate's Court found that “even assuming that Petitioner [was] in fact the non-marital child of decedent, petitioner cannot, as a matter of law, establish herself as an after born child under EPTL Sec. 5–3.2” ( id.). Noting that the case was one of first impression, the Surrogate's Court stated the legislative intent of EPTL 5–3.2 and 4–1.2 “might allow a non-marital child born and acknowledged as the child of decedent after the execution of a will to be treated as an after born child. In the case at bar, however, petitioner was born before decedent's 1984 will was executed and she alleges that he was aware that he was her father prior to the will's execution.” Furthermore, the court stated, “ had petitioner been born after the execution of dec [ e ] dent's 1984 will, or perhaps even if dec [ e ] dent was unaware of petitioner's existence until after the execution of the will, she may have had a valid claim under Sec. 5–3.2 and Sec. 4–1.2 ” ( id. [emphasis added] ).

Relying upon the above-quoted language from Walsh, the movants contend that it is permissible for an “after-known” child to be treated as an after-born child. The movants concede that they are not, strictly speaking, “after-born” children as defined in EPTL 5–3.2, but they argue that because they were not known to the decedent, they are “after-knowns” and should be treated in the same manner as adopted children. The movants also cite to Bourne v. Dorney, 184 App.Div. 476, 171 N.Y.S. 264, affd. 227 N.Y. 641, 126 N.E. 901). In Bourne, this Court considered the question of whether a child adopted by a testator subsequent to the making of his last will was an after-born child within the meaning of former Decedent Estate Law § 26 (the predecessor statute to EPTL 5–3.2). Section 26 of the Decedent Estate Law provided that where a child was born to a testator after the making of a will and the testator died leaving such child unprovided for and unmentioned in the will, that child will succeed to such part of the testator's estate as he would take if the parent died intestate. The testator in Bourne executed his will in 1886, and in 1897, the testator and his wife adopted the petitioner, who was born in 1892. As a result, the child was unprovided for in the will. Notwithstanding the fact that the operative statute required a child to be born of the testator in order to inherit, the Surrogate's Court found that the adopted child was born of the...