Will of Boyd

• Decision Date: 19 May 1994
• Citation: 613 N.Y.S.2d 330,161 Misc.2d 191
• Parties: Probate Proceeding, WILL OF Clifford J. BOYD, Deceased. Surrogate's Court, Nassau County
• Court: New York Surrogate Court

Page 330

613 N.Y.S.2d 330

161 Misc.2d 191

Probate Proceeding, WILL OF Clifford J. BOYD, Deceased.

Surrogate's Court, Nassau County.

May 19, 1994.

Edward A. McCoyd, Garden City, NY, for petitioner.

Donald J. Farinacci, Melville, NY, for respondent.

Jacob Bernstein, Oyster Bay, NY, guardian ad litem.

C. RAYMOND RADIGAN, Surrogate.

This proceeding was commenced by the executor, Bank of New York, for a construction of Article THIRD of decedent's will. That portion of Article THIRD upon which construction is sought reads as follows:

"If my wife GLORIA PALATSKY BOYD survives me, I give to my trustee an amount, if any, equal to the elective share which my wife would, except for this paragraph (A), be entitled to elect to take as my surviving spouse under the laws of the State of New York in effect at the time of my death, less the value of any property passing to her as a testamentary substitute (as that term is defined in Section 5-1.1 of the New York Estate, Powers and Trusts Law), to be held in trust ..."

The decedent died December 30, 1992, after the effective date of the new right of election statute, EPTL 5-1.1-A which expanded the list of testamentary substitutes (See L.1992, chap. 595; see also First Report to the Legislature of the EPTL Advisory Committee). The threshold question presented is whether the testamentary substitutes referred to in Article THIRD should be determined pursuant to the law in effect at the time of decedent's death, i.e., EPTL 5-1.1-A, or that in effect at the time of the will's execution, i.e., EPTL 5-1.1, as directed in decedent's will.

Both the attorney for the surviving spouse and the guardian ad litem appointed to represent the infant beneficiaries are in accord that the operative statute is the new EPTL 5-1.1-A. The petitioner's attorney, who was also the attorney-draftsman, reaches the same conclusion.

The law is well settled that to determine the meaning and effect of a decedent's will, the law in effect at the time of decedent's death is controlling (Matter of Gaffken, 197 App.Div. 257, 188 N.Y.S. 852, aff'd 233 N.Y. 688, 135 N.E. 971; McKinney's Statutes § 56) and that testators are presumed to know that laws affecting distribution of decedents' estates can be changed at any time (Matter of Lewin, 27 A.D.2d 971, 279 N.Y.S.2d 489). The Legislature could have amended the existing EPTL 5-1.1 and no issue would or could be raised because of Mr. Boyd's reference to it in his will; the fact that the Legislature determined to enact the amendments under a new section, EPTL 5-1.1-A, should not create an issue where none exists.

The court, being convinced that the new statute should control, will now address the substantive questions presented by the application of the statute to the facts.

The decedent herein died survived by a spouse and children of a prior marriage. The particular assets of which the decedent died possessed upon which instruction is sought are:

1. the marital residence, held by the decedent and his wife as tenants by the entirety;

2. a checking account in the joint names of the decedent and his wife;

3. a savings account in the joint names of the decedent and his wife;

4. an IRA account, held in the decedent's name and payable on his death to his wife;

5. a life insurance policy, owned by the decedent over which he retained the right to change the beneficiary designation, payable on death to his wife; and

6. a Veteran's Administration life insurance policy, owned by the decedent over which he retained the right to change the beneficiary designation, payable to the decedent's children.

With regard to the marital residence and the checking and savings accounts, all three of those assets are testamentary substitutes in the proportion that the funds on deposit were the property of the decedent immediately before the deposit, or the consideration for the property was furnished by the decedent (EPTL 5-1.1-A[b][1][E], [2]. The general rule is that the surviving spouse has the burden of establishing the proportion of the decedent's contribution, but where the surviving spouse is the other party to the transaction, it is conclusively presumed that the proportion of the decedent's contribution is one-half (EPTL 5-1.1-A[b][2]. Accordingly, the residence and the joint checking and savings accounts are to be considered testamentary substitutes to the extent of one-half of their value on the date of decedent's death.

With regard to the IRA account, it was opened prior to September 1, 1992, the effective date of the new statute, and the beneficiary designation was not changed thereafter. Therefore, the IRA account should not be considered a testamentary substitute (EPTL 5-1.1-A[b][1][G].

The question of the life insurance policies as testamentary substitutes presents a much more difficult issue, one which pits the court's responsibility to fulfill the intent of the Legislature in the just application of its statutes against the court's solemn duty not to encroach on the legislative domain by judicial trespass.

The guardian ad litem argues that life insurance policies should be considered testamentary substitutes by application of EPTL 5-1.1-A(b)(1)(F). In pertinent part, the statute includes as a testamentary substitute

"any ... contractual arrangement made by the decedent, in trust or otherwise, to the extent that the decedent ... at the date of his ... death retained ... by the express provisions of the disposing instrument, a power to revoke such disposition or a power to consume, invade or dispose of the principal thereof." (emphasis added)

Counsel for the surviving spouse argues forcefully that the legislative history of the new statute leaves no doubt that the Legislature enacted EPTL 5-1.1-A on the understanding that the proceeds of life insurance policies would not be considered testamentary substitutes. In fact, counsel's memorandum of law contains segments of colloquy between the then chair of the Senate Judiciary Committee and another senator from which it appears that the senators indeed believed that life insurance would not be considered a testamentary substitute.

The guardian ad litem on the other hand argues that the statute as written is clear and unambiguous on its face, precluding the court from further inquiry regarding the legislative intent.

"Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation" (McKinney's Statutes § 76). Judge Cardozo has written that the court's freedom to construe a statute is not freedom to amend it (Sexauer & Lemke v. Burke & Sons Co., 228 N.Y. 341, 127 N.E. 329). Also, "under the doctrine of separation of powers, courts may not legislate ... or rewrite ... or extend legislation (citations omitted)"(Matter of Siebert, 99 Misc.2d 32, 41, 415 N.Y.S.2d 589).

Generally a statute is to be construed according to the ordinary meaning of its words (Sega v. State, 60 N.Y.2d 183, 469 N.Y.S.2d 51, 456 N.E.2d 1174) and, as the United States Supreme Court stated, there is no better indication of legislative intent than the plain words used in a statute, but when those words lead to variance with the obvious legislative intent, the court must look beyond the exact words used (United States v. American Trucking Assn., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345).

And, as the Court of Appeals has indicated "the absence of ambiguity facially is never conclusive. Sound principles of statutory interpretation generally require examination of a statute's...