Marshall v. Williams (In re Lewis)
| Decision Date | 18 April 2018 |
| Docket Number | 4889/B–2007 |
| Citation | 106 N.Y.S.3d 728 (Table),59 Misc.3d 1217 (A) |
| Parties | In the MATTER OF Sylvan LEWIS a/k/a Sylvan Franklin Lewis, Deceased. Sylvia Marshall, Plaintiffs, v. Gemma Williams, Individually and as Co–Trustee of the Sylvan Lewis Living Trust, Glenroy Williams, Individually and as Co–Trustee of 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, v. Sylvia Marshall, Gemma Williams, Andrew S. Weinberg, Lawyers Title Insurance Company Corp., Mortgage Electronic Registration Systems, Inc. (MERS), Delta Funding Corporation, Defendants. |
| Court | New York Surrogate Court |
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
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 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 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 ...
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