Koegel v. Koegel (In re Koegel)
| Decision Date | 07 February 2018 |
| Docket Number | 2015–06583,File No. 452/14 |
| Citation | 160 A.D.3d 11,70 N.Y.S.3d 540 |
| Parties | In the MATTER OF William F. KOEGEL, also known as William Fisher Koegel, deceased. John B. Koegel, petitioner-respondent; v. Irene Lawrence Koegel, respondent-appellant. |
| Court | New York Supreme Court — Appellate Division |
Himmel & Bernstein, LLP, New York, NY (Andrew D. Himmel of counsel), for respondent-appellant.
McCarthy Fingar LLP, White Plains, NY (Robert M. Redis of counsel), for petitioner-respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, HECTOR D. LASALLE, JJ.
In Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826, 991 N.E.2d 684 ), the Court of Appeals left unanswered the question of whether a defective acknowledgment of a prenuptial agreement could be remedied by extrinsic proof provided by the notary public who took a party's signature. For the reasons that follow, we conclude that such proof can remedy a defective acknowledgment. Accordingly, we affirm the order of the Surrogate's Court, which denied the appellant's motion to dismiss a petition to invalidate her notice of spousal election.
The appellant, Irene Lawrence Koegel (hereinafter Irene), and the decedent were married on August 4, 1984. The decedent had been widowed twice before marrying Irene. Irene had been widowed in July 1983. Irene and the decedent were married for more than 29 years at the time of the decedent's death on February 2, 2014.
Prior to their marriage, the decedent and Irene executed a prenuptial agreement (hereinafter the agreement) in July 1984.
The agreement provided in the first paragraph that both the decedent and Irene desired that their marriage "shall not in any way change their pre-existing legal right, or that of their respective children and heirs, in the property belonging to each of them at the time of said marriage or thereafter acquired."
Pursuant to the second paragraph, the decedent and Irene agreed "[i]n consideration of said marriage and of the mutual covenants set out herein," that they would not make a claim as a surviving spouse on any part of the estate of the other. Further, they irrevocably waived and relinquished "all right[s] to ... any elective or statutory share granted under the laws of any jurisdiction."
Further, as per the third paragraph, the decedent and Irene declared that their execution of the agreement was not "induced by any promise or undertaking made by or on behalf of the other to make any property settlement whatsoever." They acknowledged that they entered the agreement knowing the "approximate extent and probable value of the estate of the other."
At the bottom of the first page, both the decedent and Irene signed the agreement. The second page contained certificates of acknowledgment of each signature, each signed by their respective attorneys as notaries. The decedent's signature was acknowledged by William E. Donovan on July 26, 1984. The acknowledgment read, "On this 26 day of July, 1984, before me personally appeared WILLIAM F. KOEGEL, one of the signers and sealers of the foregoing instrument, and acknowledge the same to be his free act and deed." Irene's signature was acknowledged by Curtis H. Jacobsen on July 30, 1984. The language of the acknowledgment relating to the Irene's signature stated, "On this 30th day of July, 1984, before me personally appeared IRENE N. LAWRENCE, one of the signers and sealers of the foregoing instrument, and acknowledge the same to be her free act and deed." Neither acknowledgment attested to whether the decedent or Irene was known to the respective notaries.
In his last will and testament executed December 18, 2008, the decedent stated that he was married to Irene, that there were no children of their marriage, and that he had two sons by a prior marriage. He also stated that, prior to his marriage to Irene, they entered into an "antenuptial agreement dated July 26, 1984," and that "[t]he bequests to and other dispositions for the benefit of [Irene] contained in this Will [we]re made by [him] in recognition of and notwithstanding said antenuptial agreement."
The will provided that its provisions would control in the event of an inconsistency between it and those of the antenuptial agreement, but that the antenuptial agreement would be otherwise unaffected by the will. The decedent noted that he had made other dispositions in favor of Irene, "including but not limited to ... designat[ing] her as the beneficiary of certain retirement benefits payable at [his] death."
The decedent bequeathed to Irene, in the event that she survived him, all of his automobiles, his interest in a condominium apartment in Vero Beach, Florida, subject to any outstanding mortgage and all of its contents, his condominium in Somers, New York, and all of its contents and the contents of their storage unit.
The will provided that Irene was to have the condominium in Somers for her exclusive use and occupancy, free of any rent, until her interest terminated upon remarriage, if the premises ceased to be her principal residence, or if she died. She was required to pay all carrying costs with respect to this property. Upon termination of Irene's interest, the property was to be sold and the proceeds distributed to his then living issue.
The decedent also made other specific bequests concerning personal property and sums of money to other individuals and the Hitchcock Presbyterian Church. The remainder of his estate was to be divided among his issue who survived him. The decedent's son, the petitioner, John B. Koegel (hereinafter John), was appointed as the executor of the decedent's estate.
The will was witnessed by three individuals who stated that the decedent declared the document to be his last will and testament. The subscribing witnesses executed a separate affidavit, sworn to before a notary on December 18, 2008, in which they swore that, inter alia, the decedent was of sound mind, memory, and understanding and had indicated to them that he had read the will and the contents expressed his wishes as to how his estate was to be distributed.
John filed a petition to probate the decedent's last will and testament, and the Surrogate's Court granted the petition. Letters testamentary were issued to John on March 21, 2014.
On August 21, 2014, Irene filed with the court a notarized notice of election signed July 29, 2014. Irene stated that, as the decedent's surviving spouse, she was exercising her right of election pursuant to Estates, Powers and Trusts Law § 5–1.1–A"to take [her] share of the Decedent's estate to which [she was] entitled pursuant to said statute."1
In December 2014, John filed a petition to invalidate Irene's notice of election and for a declaration that she was not entitled to an elective share of the decedent's estate. John alleged that Irene was represented by counsel at the time she freely entered into the prenuptial agreement, pursuant to which she waived her right to assert an elective share against the decedent's estate. He also alleged that Irene was knowledgeable about the decedent's assets and had reasonable and sufficient time to make inquiries about his finances if she wished to do so prior to entering into the prenuptial agreement.
John asserted that Irene accepted the benefits of the prenuptial agreement during the marriage without ever raising questions about its validity or fairness. Thus, he claimed, she was barred by the doctrine of laches from contesting the terms of the prenuptial agreement.
John contended that Irene received substantial benefits from the decedent under the will, which included a possessory interest in the Somers condominium, with a date-of-death value of $628,285, and its contents (appraised value of $29,660); a 50% interest in the Vero Beach condominium, having a 50% date-of-death value of $275,000, and its contents; sole interest in an IRA, having a principal value of $116,497; an annuity having a principal balance at death of $129,004; lifetime benefits from a charitable remainder trust benefitting Williams College, having a date-of-death principal value of $131,129; an automobile valued at $10,500; and a 50% interest in a boat valued at $1,250 at the time of the decedent's death.
In her answer and objections to the petition, Irene admitted that she signed the agreement, but denied that either her signature or the decedent's signature was duly acknowledged in accordance with applicable statutes. As for Jacobsen's representation of her at the time the prenuptial agreement was executed, she admitted that Jacobsen was known to her by virtue of his prior representation of her regarding the settlement of her first husband's estate.
For her first affirmative defense and objection, Irene asserted that the prenuptial agreement was defective, invalid, and unenforceable pursuant to Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826, 991 N.E.2d 684, because the acknowledgments omitted language expressly stating that the notaries knew the signers or had ascertained, through some sort of proof, that the signers were the persons described as required by Domestic Relations Law § 236(B)(3).2
Irene moved pursuant to CPLR 3211(a)(1) and Domestic Relations Law § 236(B)(3) to dismiss the petition to set aside her notice of election on the basis that the acknowledgment of the signatures accompanying the prenuptial agreement omitted required language. In her affidavit in support of the motion, Irene recalled that she retained Jacobsen, whom she had used to handle the estate of her first husband.
In opposition to Irene's motion, John argued that the form of the 1984 acknowledgments was proper and complied with the...
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