Estate of Henry G. Miller

The papers relied on are as follows: 1. Notice of Motion filed on September 17, 2021; 2. Affirmation of Gary Bashian, Esq. filed on September 17, 2021, with exhibits; 3. Memorandum of law in support of motion filed on October 6, 2021; 4. Affirmation of Gabriele Burner, Esq. filed on October 14, 2021; 5. Affirmation of Gary Bashian, Esq. filed on October 19, 2021; 6. Affirmation of Gary Freidman, Esq. filed on November 5, 2021; and 7. Affirmation of Gary Bashian, Esq. filed on January 14, 2022. DECISION & ORDER In this proceeding, John S. Rand (“John”) and Jennifer Rand (“Jennifer”) (collectively, the “Rands”), the preliminary executors under instruments dated June 27, 2017 and May 29, 2019 (the “propounded instruments”), offered for probate by them in the estate of Henry G. Miller (the “decedent”), move for an order: (1) striking the notice of appearance filed by Pamela Dawn Baker Miller (“Dawn”) for lack of standing and (2) awarding costs and attorneys’ fees associated with the making of the motion. Dawn opposes the motion. A guardian ad litem was appointed to represent the interest of Anna Miller (“Anna”), the infant daughter of Dawn and the decedent. He has filed an affirmation in support of the motion, recommending that Dawn’s notice of appearance be stricken. The motion is decided as set forth below. The pertinent facts are as follows: The Pre-Nuptial Agreement On March 28, 2003, the decedent and Dawn entered into a pre-nuptial agreement (the “Agreement”) which was drafted by the law firm of Berman Bavero Frucco & Gouz, P.C. The preamble paragraphs of the Agreement set forth that the purposes for which the decedent and Dawn were entering into the Agreement were: (1) each owns property in their own right and each desires to “waive any right he or she may now or hereafter have to share as surviving spouse in the estate of the other”; (2) in anticipation of marriage, they want to “define and limit the rights and obligations which each shall have in the estate and property of the other by reason of their marriage in the event of death of either”; and (3) to establish a “contractual relationship which will fix the rights and claims in the property of the other”. In ARTICLE 1 of the Agreement, the decedent and Dawn acknowledged that: (1) they had given due consideration to all the facts and circumstances likely to influence their judgment with respect to the matters embodied in the Agreement; (2) the provisions were fair and reasonable; (3) the Agreement was entered into “freely and voluntarily”; and (4) they each understood that, in the event of death or divorce, their rights might be considerably greater than what was provided in the Agreement. As to legal representation, the Agreement provided as follows: ARTICLE I REPRESENTATIONS 3. Each party acknowledges that (a) [h]e or she has had legal counsel of his or her own selection who advised him or her fully with respect to his or her rights in or to the property and income of the other and with respect to the effect of this Agreement and that such party understands such advice; ARTICLE VI LEGAL REPRESENTATION Henry has been represented by Berman Bavero Frucco & Gouz, P.C. and Dawn has been represented by Susan Galveo, Esq. of Bleakley Piatt as their respective attorneys. Each party represents and warrants that he or she has dealt with no other attorney for which services the other party is or may become liable and will indemnify and hold the other party harmless of all loss, expenses (including reasonable attorney’s fees) and damages in the event of a breach of said representation and warranty. ARTICLE III concerns separate property (owned prior to the marriage) and provides that each would maintain full control over their separate property free from interference or claim by the other. As to the waiver of their intestate rights, the Agreement provided: ARTICLE V DEATH WAIVER OF ESTATE RIGHTS A. The parties hereby waive, release and relinquish any and all rights she or he may now have or may hereafter acquire under the laws of the State of New York or any other jurisdiction to share in the other party’s estate upon the latter’s death or to act as Executor or Executrix or Administrator or Administratrix of the other party’s estate or to participate in the administration thereof. Said waiver is intended to be and shall constitute a waiver by the parties of his or her right of election to take against any Will or Codicil of the other party now or hereinafter in force in accordance with the requirements of Section 5-1.1 A of the Estate, Powers & Trusts law or any law amendatory thereof or supplemental thereto or the same or similar law of any jurisdiction or country. Thus, it is the specific intention of the parties that their respective estates shall be administered and distributed in all respects as though there was no surviving spouse. B. Nothing contained in this Agreement is intended or shall constitute: (i) a waiver of any right or claim that either party may have to enforce the terms of this Agreement against the other’s estate; or (ii) a waiver by either party of any testamentary provision which the other party may voluntarily make for him or her. C. The parties acknowledge that but for the waiver set forth in A of this Article, each of them would be entitled as the surviving spouse to receive one third outright of the estate of the other in the event of the death of the other. As to disclosure, the Agreement provided: ARTICE VII FULL DISCLOSURE 1. Dawn has had an opportunity to make independent inquiry into the complete financial circumstances of Henry and represents to Henry that she is fully informed of the income, assets, property and financial prospects of Henry, and is satisfied that full disclosure has been made, and that she cannot appropriately make a claim against Henry by reason of his failure to disclose or her failure of knowledge of Henry’s financial circumstances. 2. Dawn has had a full opportunity and has consulted at length with her attorneys, Susan Galvao, Esq. of Bleakley Piatt regarding all of the circumstances herein and acknowledges that this Agreement has not been the result of a fraud, duress or undue influence by either party upon the other or by any person or persons upon the other. The Agreement also contained an indemnification agreement in the event an action was brought to enforce the terms of the Agreement (ARTICLE VIII). ARTICLE XVI concerning the implementation of the Agreement states that Henry and Dawn shall, at any and all times, upon request by the other party or his or her legal representatives, promptly make, execute or deliver any and all other further instruments as may be necessary or desirable for the purpose of giving full force and effect to the provisions of this Agreement, without charge therefore. Finally, ARTICLE XVII states that the Agreement constitutes the entire understanding of the parties on these issues but that “[n]either party waives any right he or she may have as the surviving spouse in the event an action is brought for the wrongful death of the other.” The Agreement was signed by both Dawn and the decedent and acknowledged. Thereafter, Dawn and the decedent were married, and on August 23, 2005, Anna was born. The Propounded Instruments On June 27, 2017, the decedent signed an instrument which divided his property as follows: (1) to Dawn, if she survived, all of the decedent’s personalty located at “our New York City cooperative (the “co-op”)” together with any insurance policies thereon and the co-op and a house in Bronxville, NY, both of which were held as husband and wife (and were testamentary substitutes); (2) to his children, Jennifer, Margaret Miller (“Margaret”), Matthew Miller (“Matthew”) and Henry C. Miller (“Henry”), his personalty not otherwise given to Dawn and a condominium in Vermont, Margaret’s share to be placed in a Supplemental Needs Trust already created for her; (3) to all of his children (including Anna [whose portion was to be placed in trust]), equal shares of his residuary estate; and (4) to his son-in-law, John, his shares of stock in the law firm Clark, Gagliardi & Miller, P.C. On May 29, 2019, the decedent signed a codicil which ratified and confirmed the June 27, 2017 instrument but revoked Article SECOND (B) replacing it with a substantially similar paragraph, but which varied in that it gave a greater description of the Vermont property. Death of the Decedent and His Estate Proceedings On April 16, 2020, the decedent died, leaving Dawn and five children, namely, daughters, Anna, Jennifer and Margaret and sons, Matthew and Henry. The testamentary assets were set forth at $2,383,751. According to the papers filed by the Rands, Dawn: (1) has received approximately $3,800,000 in non-probate assets; (2) alleges ownership of $420,000 in other non-probate assets; and (3) has asserted a claim against the estate in the amount of $355,251.77 (which claim has been rejected by the Rands as preliminary executors). On May 22, 2020, the Rands filed a petition for probate of the propounded instruments. On June 9, 2020, preliminary letters issued to the Rands which letters continue to be extended. On October 1, 2020, this court issued a supplemental citation directed to Matthew, Anna and Dawn on the filed petition. On November 10, 2020, Gabriele Burner, Esq. filed a notice of appearance on behalf of Dawn. On November 20, 2020, the court appointed the guardian ad litem for Anna. On the return date of the citation, the matter was conferenced with the court. At that time, attorney Burner notified the court that Dawn intended to file objections to the probate of the propounded instruments and wanted to take SCPA §1404 discovery. On January 5, 2021, the Rands moved for a protective order to prevent Dawn from taking discovery on the basis that the Agreement was a bar to doing so. On January 7, 2021, the court conferenced the matter again and instructed counsel for the Rands that any motion had to be directed to the validity of the prenuptial agreement. At that time, the Rands agreed to withdraw the motion, and the court sent the parties to mediation. Mediation was not successful, and the parties returned to court. The Motion to Dismiss Dawn’s Notice of Appearance Thereafter, the Rands made this motion which, as stated above, seeks an order striking Dawn’s notice of appearance.¹ In support of the motion, the Rands allege, through their counsel, that Dawn relinquished her right to share in the decedent’s estate by virtue of the Agreement which is fully in effect and that the standing issue should be resolved as a preliminary matter. The Rands also contend that: (1) although Dawn may be an interested party to the proceeding, she has no pecuniary interest in the decedent’s intestate estate by virtue of the Agreement and therefore, she may not take SCPA §1404 discovery, file objections to the petition or appear in the proceeding; (2) the only way that Dawn can share in the decedent’s estate is through the admission of the propounded instruments to probate under which she would then receive some personal property; and (3) Dawn’s standing to participate in SCPA §1404 discovery and file objections may be challenged in this proceeding. Dawn, through her attorney, filed opposition to the motion, which states that: (1) since Dawn is the decedent’s wife and receives a bequest under the instrument, she has standing to contest the instrument’s admission to probate; (2) since Dawn is the mother of Anna and the sole provider for her, she has the right to conduct pre-objection discovery; (3) Dawn is an interested party and is entitled to discovery on the decedent’s assets; and (4) a plenary hearing on the issue of the validity of the agreement “may be appropriate”. The Law and the Court’s Conclusions It is a well-settled practice in the Surrogate’s Court to determine the status of a potential objectant before trying the issue of the validity of the instrument for probate (see Matter of Cook, 244 NY 63 [1926] [upholding contractual arrangement between testator and distributees to not contest the purported instrument in exchange for lifetime gifts]; see also Matter of Erlanger, 136 Misc 784 [Sur Ct, NY County 1930] [claim against the purported instrument by alleged common law wife resolved prior to probate]; Matter of Andrews, 194 Misc 217 [Sur Ct, Broome County 1949] [settling the issue of spousal abandonment before allowing will contest by estranged spouse to proceed]). An individual who waives all interest in a future estate is in essence a stranger to the estate and may not file objections to the probate of the will or seek to inherit in intestacy (see Matter of Cook, 244 NY 63 [agreement forged between decedent and distributees to give lifetime gifts in exchange for not objecting to will was enforceable]). Absent an interest in an estate, a party is not entitled to an examination under SCPA §1404 (see Matter of Mafoud, 2001 NYLJ LEXIS 444 [Sur Ct, Richmond County 2001]). Further, SCPA §1410 requires a party filing objections to an instrument to be adversely affected by its admission. Adverse interest has been construed to mean a pecuniary harm (see Matter of Hall, 12 AD3d 511 [2d Dept 2004]). Where an individual has no stake in the estate, there is no pecuniary harm to her. With regard to spousal waivers, the rights of inheritance in the property of a deceased spouse will not be denied unless the waiver is clearly expressed or clearly inferable, and then it will be enforced to no greater extent than the agreement specifically requires (see Matter of Laney, 274 App Div 250 [4th Dept 1948]; see also Matter of Dito, 218 AD2d 737 [2d Dept 1995] [waivers of estate interests must be clear and unequivocal and are narrowly interpreted]). Each case must be separately analyzed with the specific language carefully considered (see Matter of Maslanka, 63 Misc2d 70 [Sur Ct, Erie County 1970]). As a preliminary matter, the court must presume from Dawn’s acknowledged signature on the Agreement, that she understood the nature of the document she was signing and intended to be bound by the terms (see Matter of Abady, 24 Misc3d 1240[A] [Sur Ct, Dutchess County 2009] affd, 76 AD3d 525 [2d Dept 2010] [objections to probate lodged by surviving spouse dismissed without a hearing on the basis of valid prenuptial agreement which deprived her of standing to object to the petition]). As to wording of the Agreement itself, “it is difficult to conceive of language which more clearly expressed the intentions of the surviving spouse to relinquish all her rights in and to her husband’s estate as a condition of the prenuptial agreement (Matter of Dorsky, 1994 NYLJ LEXIS 3083 [Sur Ct, Nassau County 1994]). It is clear that Dawn and the decedent each agreed to waive and release the other of the rights to share in the other’s estate and to elect against their testamentary instruments. Since (1) on its face the Agreement is explicitly clear, (2) Dawn was represented by counsel; and (3) the terms clearly eliminate Dawn’s right to share in the decedent’s testate estate (excluding if the decedent decided to bequeath her something) and intestate succession, she has no right to examine the draftsperson, the proponent or the witnesses to the propounded instrument (see e.g. Matter of Grady, 1997 NYLJ LEXIS 5512 [Sur Ct, Queens County 1997] [instrument is admitted to probate and surviving spouse not entitled to SCPA §1404 discovery based on bona fide prenuptial agreement waiving rights to decedent's estate]). Notably, nowhere in Dawn’s papers does she challenge the validity of the Agreement. In fact, the court requested that Rands supplement their motion with a copy of the complete Agreement and gave Dawn another opportunity to review it, and she did not object to it or question its authenticity. Additionally, that the decedent chose to leave Dawn personal property does not affect the validity of the Agreement. Finally, although the decedent died over two years ago, Dawn has not sought to institute any action to set aside the Agreement (see Matter of Abady, 24 Misc3d 1240[A]), and she basically acknowledged the validity of the Agreement by stating that her real purpose was to discern the nature and extent of the decedent’s assets. While that part of the motion which seeks attorneys’ fees and costs is denied, the remaining aspects of the motion are granted. The matter is restored to the July 20, 2022 calendar at 9:30 a.m., at which time, the GAL is directed to submit his report and affidavit of legal services. This is the decision and order of the court. Dated: June 22, 2022