In The Matter Of The Estate Of John T. Cavalier
| Decision Date | 04 February 2011 |
| Docket Number | 2009-480/A |
| Citation | 2011 NY Slip Op 50130 |
| Parties | In the Matter of the Estate of John T. Cavalier, Deceased. |
| Court | New York Surrogate Court |
Timothy Pellittiere, Esq., Penfield, New York, Attorney for the Estate / Petitioner.
Michael Cobbs, Esq., Brown & Hutchinson, Rochester, New York, Special Counsel for the Estate / Petitioner.
Joseph N. Darweesh, Esq., Rochester, New York, Attorney for the Claimant / Objectant, John J. Cavalier.
FACTSDecedent died February 8, 2009 survived by his spouse, Cheryl A. Cavalier ("Administrator" or "Petitioner") and his parents, John J., "Jack" and Jane Cavalier. Letters of Administration were issued to Cheryl Cavalier on March 6, 2009. A Verified Claim was filed by Jack Cavalier "Objectant") on September 4, 2009 alleging that the Administrator was in possession of a 1971 Jaguar and six firearms that rightfully belonged to him. This Claim was rejected by the Estate on November 4, 2009 on the grounds that those items were the property of the Decedent Accordingly, the contested items of property were listed in the Inventory filed by the Estate on January 19, 2010, with the value of the 1971 Jaguar listed as $40,000.00 and the value of the six firearms listed as $2,500.00.
On March 24, 2010, a Petition for Judicial Settlement was filed by the Administrator. Jack Cavalier's counsel appeared in Court on May 13, 2010 to object to the Petition for Judicial Settlement. Formal objections were filed on June 2, 2010 alleging that the 1971 Jaguar and six firearms were never the property of the Decedent. Additionally, Jack Cavalier claimed that three of the firearms allegedly owned by him, and possessed by the Decedent, were not accounted for.
The Administrator replied to the objections on June 8, 2010 recounting the circumstances by which the Decedent came to leave no will. Decedent's counsel, Timothy Pellittiere allegedly met with the Decedent in the hospital prior to his death and informed him of the laws of intestacy. Based on this explanation, and with the knowledge that failing to execute a will would result in all of his assets passing to his spouse, as well as her appointment as Administrator, the Decedent informed his parents and wife that he did not want to sign a will. Jack Cavalier then stated to the group that the 1971 Jaguar in the Decedent's garage belonged to him. The parties did not further discuss the matter at that time.
The Administrator's reply papers also claim that while the 1971 Jaguar was initially purchased and registered by the Decedent' father, it was given to the Decedent "at some point," and ownership was transferred. As the automobile was owned by the Decedent at the time of his death, the Administrator argued, it properly passed to his spouse pursuant to EPTL §4-1.1.
While the initial Inventory filed by the Estate accounted for six firearms, the Accounting filed in connection with the Petition for Judicial Settlement listed only three. This discrepancy was not explained in the Administrator's reply papers or testimony.
Attempts by the Estate to settle the dispute were unsuccessful, and on July 27, 2010, a Hearing was held on the Objections to Judicial Settlement of the Final Account. At the Hearing, testimony was given by the Administrator, and the Objectant, as well as two witnesses for the Objectant: the Administrator's sister and brother-in-law, Lynn and Kenneth Yanklowski, and one witness for the Administrator: her mother, Carol Coyle. The testimony adduced at the Hearing primarily recounted facts which were already either undisputed, or had been previously affirmed to in the papers. The witnesses for both parties testified that they believed that the 1971 Jaguar had belonged to the Decedent or the Objectant, respectively. Also, both Lynn and Kenneth Yanklowski testified that some of the firearms in the Decedent's possession at the time of his death were auctioned by the Administrator. See, Transcript of Hearing, Matter of John T. Cavalier (No. 2009-480/A Aug. 20, 2010) (hereinafter "Transcript"), pp. 89, 103. The Administrator however testified that there were only three firearms in the Decedent's possession at death, and she has not auctioned or sold them. Transcript, p. 143. The Administrator and all three witnesses testified that they did not know the exact ownership or number of the various firearms stored in the Decedent's home.
Due to the understandable, but undeniable lack of evidence documenting any agreement between father and son regarding the ownership of the disputed items of personal property, the Objectant is unable to satisfy the substantial burden of proof required and the Account must be accepted by the Court as submitted by the Administrator.
OPINIONThe accounting party has the general burden of showing that all assets of the decedent's estate are fully accounted for. To a large extent, this burden is sustained through presumptions. The fiduciary's initial burden is met by merely placing the account into the record. See, Matter of Schnare, 191 AD2d 859, 594 N.Y.S.2d 827 (3d Dep't 1993). The objectant then "bears the affirmative burden of coming forward with evidence to establish that the account is inaccurate or incomplete." Id. at 860. In order to prevail in a claim that there are additional assets in the estate that are not accounted for, the objecting party must establish so with reasonable certainty. Conjecture and suspicion are not sufficient. See, e.g., Matter of Watson, 215 NY 209, 109 N.E. 86 (1915); Matter of Hunter, 170 A.D. 934, 154 N.Y.S. 1126 (4th Dep't 1915); Matter of Taylor, 912 N.Y.S.2d 651 (2d Dep't 2010).
This case is complicated for both parties by the fact that New York State does not issue title certificates for motor vehicles of model year 1972 or older, and therefore, no title exists evidencing...
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