Opinion
2010-2422
01-12-2012
In the Matter of the Estate of James Barkley, Deceased.
David W. Peters, Esq., Ashcraft, Franklin,Young & Peters, LLP, Rochester, New York, counsel for Mark Gaines, Petitioner. Michael A. Burger, Esq., Rochester, New York, guardian ad litem for Michael Barkley and Peter James Barkley, III.
David W. Peters, Esq., Ashcraft, Franklin,Young & Peters, LLP, Rochester, New York, counsel for Mark Gaines, Petitioner.
Michael A. Burger, Esq., Rochester, New York, guardian ad litem for Michael Barkley and Peter James Barkley, III.
Edmund A. Calvaruso, J.
FACTSDecedent died October 6, 2010 survived by eight children. On October 26, 2010, Decedent's daughter Traycee Timian filed a Petition for the Administration of the Estate. On December 15, 2010, Decedent's step-son, Mark Gaines filed a Petition for the Probate of Decedent's Last Will and Testament dated December 23, 2009, objecting to the initial Administration filing. The original Will was not included in the filing, and in his Petition, Mr. Gaines alleged that the original Will was in the possession of, or had been destroyed by Traycee Timian. Accordingly, counsel for Mr. Gaines, David Peters, Esq., filed a Petition to Compel Production of the Last Will and Testament pursuant to SCPA 1401. The Will in dispute left all of Decedent's property in two equal shares to his son, Peter James Barkley, III, and Mark Gaines, and named Mark Gaines Executor.
A hearing pursuant to SCPA 1401 and 1407 was held on April 12, 2011 during which the testimony of Mark Gaines, Traycee Timian and Mary Barkley, another daughter of Decedent, was given. Ms. Timian opted to appear without counsel. Although Decedent's sons James Barkley, Jr., and Leslie Barkley had also been issued subpoenas for that date, and were both seen by Court security in the courtroom prior to the start of the hearing, they did not testify. Court security reported that the parties had been involved in an altercation in the lobby of the courthouse, and James Barkley, Jr. and Leslie Barkley had then left the courthouse.
On June 2, 2011, the Court received correspondence from Michelle Diaz, daughter of Decedent, indicating that she had been encouraged not to attend the April 12, 2011 hearing by Traycee Timian. Based on this information, the Court opted to reopen the hearing for the testimony of Michelle Diaz on August 24, 2011. Ms. Timian again appeared without counsel. Leslie Barkley, who became incarcerated on June 27, 2011, requested that the Court issue a body order allowing him to testify at the reopened hearing. However, as he gave no explanation for his failure to appear at the initial hearing date, this request was denied.
The undisputed testimony adduced at the hearing revealed that the Will in dispute was drafted after the decedent's spouse had died, and changed both the beneficiaries and the executor. Mark Gaines testified that important family documents were always kept in a square metal container, and he had seen the new Will in that container after it was executed. He stated that he had been traveling in the days prior to his father's death, and when he returned on October 4, 2010, he found Traycee Timian, James Barkley, Jr. and Leslie Barkley in the decedent's house, going through the documents in the container. In her testimony, Traycee Timian admitted that the three were in the house at that time, and that she had done some searching for the will, but denied destroying any of the decedent's papers.
On September 13, 2011, counsel for Mark Gaines filed a Supplemental Brief again alleging that Ms. Timian had destroyed the original Will, and outlining the allegations against Ms. Timian and requesting that the Court impose attorneys fees against Ms. Timian pursuant to SCPA 1401.
OPINION
SCPA 1407 permits a lost or destroyed will to be admitted to probate only if: (1) It is established that the will has not been revoked; and (2) Execution of the will is proved in the manner required for the probate of an existing will; and (3) All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.
The validity of execution of the December 23, 2009 Will is not in dispute. In fact, there have been no objections of any kind filed contesting the Petition for Probate. However, even in the absence of objections, it is the duty of the Surrogate "to be satisfied that all legal requirements have been met before a propounded paper is admitted to probate as a will." Matter of Ericson, 200 Misc. 1005, 106 N.Y.S.2d 203 (Suffolk Co. 1951).
Therefore, all that remains before this Court is whether the Will was revoked by the decedent. "Where the original will is last known to be in the possession of a decedent, there is a statutory presumption the decedent destroyed the will animo revocandi i.e., with the intention to revoke." See In re Staiger, 243 N.Y.468 (1926); In re Robinson, 168 Misc. 545, 5 N.Y.S.2d 801 (Erie Co. 1938), aff'd, 257 A.D. 405, 13 N.Y.S.2d 324 (4th Dep't 1939). However, in this case, there is credible evidence, in the form of the testimony of Mark Gaines, that the will was not truly in the possession of the decedent at the time of his death. The decedent was failing, and required assistance even to bathe, according to Traycee Timian. She, also by her own admission, was frequently staying with the decedent and assisting him in his final days.
If the decedent did not have custody of his will, the presumption of revocation does not arise. See, e.g., Matter of Yannaco, N.Y.L.J., June 1, 2011, at 26, col. 3 (NY Co. 2011); Matter of Quaranto, N.Y.L.J., July 13, 2000, at 31, col. 3, col. (Nassau Co. 2000) (presumption of revocation did not arise because credible evidence showed that testator's brother always had custody of testator's will). A will that is lost or destroyed while the decedent does not have possession of it is presumed destroyed without the decedent's knowledge or consent, and the result is the same as if the will was in existence at the time of the decedent's death. Matter of Levinsohn, 5 Misc 2d 605, 160 N.Y.S.2d 479 (Kings Co. 1957).
According to the testimony of his children, the decedent was a careful and organized man. He had Peter James Barkley, III transport him to an attorney's office to have his will redrawn after his wife's death, and informed a number of his children that he was doing so. Mark Gaines testified that he saw the original will among the decedent's papers. Three of the disinherited children, Traycee Timian, James Barkley, Jr., and Leslie Barkley were alone in the decedent's house prior to his death. James Barkley, Jr. and Leslie Barkley failed to testify, from which the Court has no choice but to infer that their testimony would be adverse to their interests. Additionally, Ms. Timian's denials that she searched through the decedent's papers were inconsistent and not credible. She also encouraged a potentially adverse witness, Michelle Diaz, not to appear. Mary Barkley and Michelle Diaz both testified against their own interest that they were suspicious of Ms. Timian's motives in preparing and filing the administration petition so promptly after Decedent's death and that they both were surprised to learn there was no will.
Mark Gaines, through his attorney, has requested that attorney's fees be awarded pursuant to SCPA 1401, which grants the Surrogate discretion to impose reasonable fees against the respondents. The Court declines to exercise its discretion to grant this request
Therefore, in accordance with the above decision, and the Probate not having been contested, and proofs having been duly filed on behalf of the attesting witnesses to the Last Will and Testament of James Barkley, Sr. dated December 23, 2009, and it appearing by such proofs that the same were duly executed and are genuine and valid and that the decedent at the time of executing same was in all respects competent to make a will and not under restraint, it is hereby
ORDERED, ADJUDGED and DECREED that the Last Will and Testament of James Barkley, Sr. dated December 23, 2009 is deemed a lost or destroyed will; and it is further
ORDERED, ADJUDGED and DECREED that the instrument offered for probate herein be, and the same hereby is admitted to probate as the Last Will and Testament of the above-named decedent, valid to pass real and personal property, that the Will be recorded and that Letters Testamentary issue to Mark Gaines upon properly qualifying for such office; and it is further
ORDERED, ADJUDGED and DECREED that the request for attorney's fees pursuant to SCPA 1401 is hereby denied; and it is further
ORDERED, ADJUDGED and DECREED that the Petition for the Administration of the Estate of James Barkley, Sr. is hereby dismissed.
Hon. Edmund A. Calvaruso, Surrogate