Surrogate Kelly
ESTATE OF PANTELIS FAKIRIS A/K/A PETER FAKIRIS, Deceased (13-1946-M) — In this proceeding, the decedent’s spouse, Donna Fakiris (petitioner), moves for a determination that the validity, construction, and effect of Article Sixth of the decedent’s Last Will and Testament results in the entirety of decedent’s estate passing to her as the sole residuary beneficiary. If petitioner’s analysis is correct, it is her contention that all of the objections to her accounting raised by decedent’s daughter, Marina Fakiris (objectant), must be dismissed for lack of standing. Objectant opposes the motion and cross-moves for a determination that Article Sixth be construed in such a manner that objectant be deemed the sole residuary beneficiary, or, alternatively, that petitioner is the residuary beneficiary solely to the extent of the first $250,000.00 of the residuary estate, with objectant being entitled to the balance. Article Sixth of the decedent’s Last Will and Testament reads as follow: All the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature and wheresoever the same may be situated, of which I may die, seized or possessed, or to which I may be entitled at the time of my death, I give, devise and bequeath to my friend, DONNA GERAGHTY, the sum of TWO HUNDRED AND FIFTY THOUSAND ($250,000.00) DOLLARS should she survive me (sic). In the event that DONNA GERAGHTY shall predecease me, then I hereby give, devise and bequeath the aforementioned sum along with the rest, residue and remainder of my estate wherever situated to my daughter, MARINA FAKIRIS, absolutely, per stirpes. The parties had previously pursued a construction of this troublesome Article in a separate proceeding commenced by the within objectant. By decision dated January 20, 2016, this Court concluded as follows: [T]he language of this article does present an ambiguity. A reading of the plain words used might support an argument that the decedent intended Donna to receive $250,000.00 and the residuary, while the same went to Marina only in the event that Donna predeceased him, or that he intended Donna receive the first $250,000.00 of his residuary if she survived him, with the balance to Marina. Under either party’s construction of Article Sixth, however, it is absolutely clear that Donna is to receive the first $250,000.00 of the residuary estate. The Court refrained from any further analysis at that time, observing that the value of the residuary estate did not come close to $250,000.00, thereby rendering the task academic. However, it now appears that some of the objections raised to petitioner’s accounting, if sustained, could bolster the value of the residuary estate beyond that amount. Whether objectant can continue to pursue her numerous objections however, is contingent on establishing her status as a residuary beneficiary. Thus, the need to construe Article Sixth has ripened. Before ferreting out decedent’s intent, the Court must address the objectant’s threshold argument that petitioner is judicially estopped from seeking a construction of the Will inconsistent with determining that objectant is decedent’s sole residuary beneficiary. The doctrine of judicial estoppel precludes a party from adopting a position that is directly contrary to or inconsistent with a position taken in a pleading, deposition, or in testimony before the court (see Moran Enters, Inc v. Hurst, 160 AD3d 638 [2d Dept 2018]; McCaffrey v. Schaefer, 251 AD2d 300 [2d Dept 1998]). Its application was envisioned, inter alia, to preserve the sanctity of sworn pleadings, ensure the orderly administration of justice, and safeguard the integrity of the judicial process (see e.g. Borges v. Placeres, 64 Misc 3d 92 [1st Dept 2019]). As the Court’s ability to get to the truth of the matter before it is essential to the latter objective, judicial estoppel is to be applied in the Court’s discretion, and, given its sometimes draconic results, under narrow circumstances (see Matter of Gallagher, 2007 NY Misc Lexis 7639 [Kings County Surrogate's Court Sept. 26, 2007]). In order for this equitable doctrine to be applied, the objectant must demonstrate (1) that petitioner secured a favorable judgment in a prior proceeding by adopting a certain position and has now taken a contrary position; and (2) the Court premised its judgment on the basis of that position or otherwise adopted or embraced it (see Kimco of NY, Inc. v. Devon, 163 AD2d 573 [2d Dept 1990]); McIntosh Builders Inc., v. Ball, 264 AD2d 869 [3d Dept 1999]; Gamma Lending Omega LLC v. Kaminski, 2020 NY Misc Lexis 4950 [Sup Ct. New York County 2020]). Objectant argues for its application based upon the fact that the probate petition — prepared by the drafter of decedent’s Will with the same inadequate precision — described objectant’s interest in the estate as “distributee, legatee (stock & personal property & residual beneficiary).” Objectant claims that she specifically relied on that information in executing a waiver consenting to the admission of the decedent’s Will to probate. As such, it is objectant’s position that petitioner is now estopped from claiming otherwise. Objectant’s counsel argues: Had the Probate Petition stated that Donna Fakiris is the residuary beneficiary, Marina would have objected to the Probate Petition and the issues raised by the Objection would have been examined and determined before the Will was admitted to probate, before issuance of the probate decree, and before granting of Letters Testamentary… Counsel’s retrospective assumption is erroneous. At issue in the underlying probate proceeding was the “genuineness of the [decedent's] will and the validity of its execution” (SCPA 1408). The decree issued in the probate proceeding was limited to a determination that the Will itself was valid and the decedent therefore died testate. No determination was made at that time as to the interpretation or effect of any of its provisions. “[U]nless the will is admitted to probate there is no power to construe it. Probate logically precedes construction, for otherwise there is no will to construe” (Matter of Davis, 182 NY 468 [1905]). Critically, objectant does not claim that she would have objected to the validity of the offered instrument. Absent from her affidavit is any allegation that the decedent lacked the capacity to make a valid will, that the instrument was procured by nefarious means, or that the instrument is otherwise invalid for want of due execution. Her objection concerns the Will’s effect, not its genuineness. Contrary to counsel’s claims, an objection of this nature would not have been determined in the context of the probate proceeding. “There is no authority to construe the will for the purpose of defeating probate…” (id.). “The meaning of the will, its interpretation and its possible correction can be accomplished only after the will has been admitted to probate.” Matter of Devine, 244 NYS2d 934, 940 [Surr. Ct. New York County 1963]). Thus, had the objection been raised at that time as suggested, it would have at most delayed probate unnecessarily. It follows that the result obtained by the petitioner (namely, the admission of the Will to probate) is not attributable to the descriptions of the interests of the parties contained in the probate petition. Rather, it is a result of the fact that the instrument, while perhaps inartful and imprecisely drawn, was otherwise valid. “If it appears the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property” (SCPA 1409; Matter of Davis, 182 NY 468 [1905]). Additionally, although the format of the probate petition calls for a description of the parties’ interests, this Court neither relied on those descriptions in admitting the Will to probate beyond achieving the necessary jurisdictional predicates, nor rendered a specific finding or adopted a position in this regard. In fact, the parties have been content to litigate the construction of the Will for several years since its admission to probate. The objectant was presumably aware that the probate decree was not determinative as to the effect of Article Sixth as she filed a separate proceeding for construction of the instrument back in 2014. At that time, no mention was made of judicial estoppel or objectant’s purported reliance on the information contained in the probate petition1. In any event, there are no compelling equity or policy considerations that warrant ending an inquiry into a decedent’s intent regarding the dispositive provisions of a Will based solely on an imprecise pleading filed by a party in the manner done here. The Court’s duty to effectuate the decedent’s intent would not be remotely served if the outcome was solely based upon the slipshod linguistics that have plagued this estate. Indeed numerous pleadings verified by objectant over the course of several litigious years also failed to describe objectant’s interest as sole residuary beneficiary of decedent’s estate.2 Hence, while the Court does not condone litigants blindly verifying pleadings without regard to accuracy and consequences, the careless pleading practices of the parties and their respective counsel, to the extent performed in this matter, should not dictate an outcome that must be keenly focused on extracting the decedent’s intent. To the extent the information contained in the pleadings constitutes admissions (see e.g., Mich Nat’l Bank-Oakland, 89 N.Y.2d 94 [1996]); Prince, Richardson on Evidence §-219), they do not amount to conclusive evidence of this decedent’s intent. If anything, the conflicting and everchanging descriptions of the parties’ interests in the pleadings highlight the ambiguity of the poorly worded residuary clause, the resulting confusion among the litigants, and the need for extrinsic evidence to assist in its construction. Accordingly, the branch of the objectant’s cross-motion which seeks to apply judicial estoppel is denied. This threshold argument aside, the Court now turns to petitioner’s motion. The Court’s paramount objective in a will construction proceeding is to determine and carry out the testator’s intent (see Matter of Fabbri, 2 NY2d 236 [1956]). In cases where the language to be construed is precise enough to convey one meaning, intent is to be determined solely on that basis, and without resort to rules of construction or extrinsic evidence (see id. at 244). To go beyond the language of the instrument in this category of cases would result in an impermissible “refabrication” or rewrite of the decedent’s testamentary plan, as opposed to mere interpretation (see id.). However, as previously determined by this Court (see supra), and contrary to each party’s insistence that the language of the Will militates clearly in their favor, the language employed in this flawed Article does not provide one reasonable meaning and is susceptible of different constructions (id. at 244). As such, this Court is obliged to “employ whatever means necessary to effectuate the actual intent of the testator” (id.). This includes consideration of extrinsic evidence to ascertain the decedent’s true intent (see Matter of McCabe, 269 AD2d 727 [3d Dept 2000]); Matter of Phillips, 101 AD3d 1706 [4th Dept 2012]). Such evidence may include the testimony of the attorney-draftsperson (see Matter of Stiefel, 24 AD3d 994 [3d Dept 2005]; Matter of Ossip, 1991 NYLJ Lexis [Surr Ct. Westchester County 1991]; CPLR 4503[b]). The facts and circumstances surrounding the making of the Will may also be considered (see Matter of Furry, 196 Misc 763 [Surr. Ct. Broome County 1949]). In support of the motion, petitioner submits inter alia an affidavit from attorney draftsperson George E. Magriples (Magriples), an estate planning intake form, a prior draft of the Will, and an email with running handwritten notes reflecting subsequent communications from the decedent to Magriples. According to Magriples, he met and conferred with the decedent on three occasions and spoke with him on more than one occasion by telephone concerning his estate plans. Throughout that time, Magriples swears that the decedent consistently communicated his desire that his entire residuary estate be left to the petitioner. In further support of his assertions, paragraph 51 of the estate intake form entitled “Residuary Estate-contingencies over” includes Magriples’ handwritten notation “Residual Donna.” There is no further information in that paragraph other than a question mark and the notation “after lunch.” Magriples goes on to state that the testator initially directed that in the event petitioner predeceased him, the residuary estate would go to both of his children, the within objectant and her brother Kostas. Magriples references and includes a draft of the Will he prepared reflecting the decedent’s preliminary directives. Article Sixth of that draft reads as follows: All the rest, residue and remainder of my estate, both real and personal of whatsoever kind and nature and wheresoever the same may be situated, of which I may die, seized or possessed, or to which I may be entitled at the time of my death, I give, devise and bequeath to my friend, DONNA GERAGHTY should she survive me. In the event that DONNA GERAGHTY shall predecease me, then I hereby give, devise and bequeath the rest, residue and remainder of my estate wherever situated to my son, KOSTAS FAKIRIS and my daughter, MARINA FAKIRIS, in equal shares, absolutely, per stirpes. There is no ambiguity in this version of Article Sixth. It clearly provides for the decedent’s entire residuary estate to pass to the petitioner provided she survived the testator. The decedent’s children would only have taken part in the residuary in the event that petitioner predeceased the testator. Unfortunately, this pellucid version of Article Sixth did not remain undisturbed. According to Magriples, on the day of the instrument’s execution, decedent expressed his concern that petitioner receive a pre-residuary bequest in the sum of $250,000.00 so as to be assured that petitioner “would have sufficient cash3” to maintain the residence he was devising to her under his Will. Magriples states: “ It was never intended that Donna receive $250,000 in lieu of the residuary estate; rather that Donna was to receive $250,000 and the residuary estate.” Magriples instructed his secretary to “quickly make changes” to incorporate the bequest and returned to decedent’s office to execute the Will. He states the following concerning the emergence of this problematic and costly article:
