Family Feud Over Painting by Jean-Michal Basquait:

This was originally posted on the SGR Blog.

Court Addresses Validity of Will Disposing of $30m+ Estate

On February 18, 2015, Dolores Ormandy Neumann fell in her home and broke her hip. Her neighbor contacted Dolores’ daughter, Belinda, who took her to the emergency room.

The following day, in the hospital before her hip surgery, Dolores executed a testamentary instrument, her penultimate will. The February 19th document was drafted and its execution overseen telephonically by an attorney in Florida, who worked for the Law Offices of Amy Holzman. Holzman, who worked and resided in New York State, was away on vacation and out of the country at the time. That instrument sought to disinherit Dolores’ spouse, Hubert, and after certain specific bequests, including her most significant asset, a painting by the artist Jean-Michel Basquiat, to Belinda, the February 19th instrument also gave Belinda the residuary estate.

Dolores and/or Belinda were referred to Holzman for estate planning and will drafting by Alison Wolfson, a family friend who was also involved in the art world and later became Belinda’s business partner. It appeared that Holzman had discussed estate planning with Dolores several months prior to her February 2015 hospitalization, though Holzman had not yet been formally retained.

Dolores wrote certain hand-written additions on the February 19th instrument prior to signing it. In those hand-written notes, she  requested that Belinda use the legacies under the will to provide for her  third child, Kristina Neumann. Dolores  also indicated to the initial drafter that she wanted to adjust the specific bequests, and when Holzman returned from vacation, a revised will was drafted and executed at the rehabilitation center where Dolores  had been admitted on February 26, 2015, after her hip surgery hospitalization.

The March 4, 2015 instrument, prepared by Holzman and with her colleague’s assistance, contained dispositions modified from the February 19th instrument. It included a bequest to the Philadelphia Orchestra, with which Dolores’ uncle was famously connected;  provided for bequests of certain tangible personal property—jewelry and art—to only three of her six grandchildren (that is, to the children of Belinda); and all other tangible personal property, including specifically bequeathed property of a small piano and harp, was given to Belinda. The Basquiat painting, entitled “Flesh and Spirit,” was now directed to be sold, with the proceeds to be distributed as part of Dolores’ residuary estate.

Instead of benefiting Belinda exclusively, the net residuary estate in the March 4, 2015 instrument was to be divided into ten shares, with one share going to the trustees of a testamentary trust for the benefit of her daughter Kristina, the lesser of one share or $1 million to her daughter Melissa, and the remaining eight shares to Belinda, who was also nominated executor. With respect to Hubert, the propounded instrument again sought to disinherit him. Additionally, a no contest clause was added.

The circumstances of the genesis and execution of the March 4, 2015 instrument, the one propounded for probate, were as follows. On February 26, 2015, the day that Dolores was released from the hospital and admitted to the rehabilitation center, Belinda met with Holzman in Holzman’s offices for two hours, a meeting that Belinda did  not remember. On the following day, Holzman spoke at length with Dolores on the phone and on several occasions thereafter regarding the will’s provisions.

On March 4th, Holzman and Orrit Hershkovitz, Esq., who would act as attesting witnesses, and a notary, Diana Sullivan, met Dolores  in the afternoon in an empty room in the rehabilitation center. After exchanging pleasantries, Holzman showed Dolores a copy of the will, went over the entire will, and read verbatim to her the dispositive provisions as well as the witnesses’ affidavit. After being questioned as to whether that was her will, Dolores confirmed that it was, and signed it without aid. Thereafter, Holzman and Hershkovitz signed the witness affidavit, which was notarized by Sullivan. Nothing suggested that Belinda was present at the rehabilitation facility or communicated with Dolores at or around the time of the March 4th execution.

Dolores died a year-and-a-half later, on September 23, 2016, at age 81. Belinda filed a petition to probate the March 4, 2015 instrument on November 14, 2016. After conducting extensive discovery, on April 2, 2019 and April 8, 2019, respectively, Hubert and Melissa interposed objections to probate on the basis of a lack of testamentary capacity and of due execution and that the will was the product of undue influence and fraud. They further requested that Belinda be denied appointment as executor and trustee because of her overreaching.

Also pending in the Court were proceedings by Belinda as Preliminary Executor to disqualify Hubert as surviving spouse, to partition cooperative shares and personal property/art work, and for Hubert’s claimed tortious interference with the eventual sale (for over $30 million) of the Basquiat painting owned by Dolores.

The record showed that Dolores had a previous testamentary instrument from May of 1999. That 1999 instrument gave $25,000 to each of her grandchildren, distributed her estate to her three daughters equally, nominating all three as co-executors, and did not provide any bequest for Hubert.

The Court found that Belinda established, prima facie, that the propounded instrument should be admitted to probate by pointing to the attestation clause in the will and by providing the contemporaneous affidavit of the two attesting witnesses which stated that Dolores was “of sound mind, memory and understanding” and “was not suffering from any defect of sight, hearing or speech, or from any other physical or mental impairment” that could affect her capacity to execute a will. The affidavit further explained that Dolores was “under no constraint, duress, fraud or undue influence” and provided that the formal requirements regarding the ceremony of execution and attestation were satisfied. Belinda also offered the deposition testimony of those two witnesses, both of whom are attorneys, one being the attorney-drafter. That was sufficient to establish Belinda’s prima facie case.

The Court drew all reasonable inferences in favor of Hubert and Melissa, as the non-moving parties. But they failed to submit specific and detailed proof, substantiated by evidence in the record to raise a question regarding their claims that Dolores lacked the requisite capacity to execute a will: the will was not properly executed; or  it was the product of a deceptive misrepresentation.

In opposition to Belinda’s prima facie case, Hubert and Melissa relied primarily on the following evidence: the affidavit of a physician who never treated Dolores but who concluded that she lacked capacity; isolated comments in Dolores’ medical records around the time of the will’s execution that she was undergoing or wanted a divorce or was “single” and that she thought her Basquiat painting could be worth $122 million; sworn statements of recollections of the ongoing good relationship between Dolores and all her children and grandchildren; and her “distorted reality” and “paranoia” as reflected in her failure to vacate her apartment upon returning home from her convalescence following hip surgery when it was discovered that the apartment was infested with bed bugs.

Hubert and Melissa asked the Court to conclude that Dolores did not know the nature and extent of her property; did not understand the nature and effect of executing a testamentary instrument; and was not able to identify the natural objects of her bounty and her relations with them. That was the well-established functional analysis for testamentary capacity, which is less capacity than is required to execute any other legal document.

The conclusion of the physician that Dolores lacked capacity was an opinion based solely on review of medical records, and from one who never examined her and it did not alone create an issue of fact sufficient to survive summary dismissal. Opinion evidence by a non-treating physician constituted the weakest and most unreliable kind of evidence as to capacity or its absence. And where there  was direct evidence that the decedent possessed the understanding to make a testamentary disposition, even medical opinion evidence assumed a relatively minor importance. The doctor’s report here fell squarely in that category.

There were no indications that Dolores suffered serious complications during or after the surgery to repair her broken hip. And the notes from the rehabilitation center related to her physical therapy presented no evidence that she ever failed to recognize anyone or to know who or where she was or that she behaved anything but rationally. None of the people that observed or interacted with Dolores in the days leading up to and including March 4, 2015, doctor, psychologist, social worker, the two attorneys that witnessed her will, or Holzman’s paralegal, who also attended the execution of the propounded instrument, reported her being anything other than oriented and alert. Until the contrary is established, a testator is presumed to be sane and have sufficient mental capacity to make a valid will.

Although the doctor’s report tried to make much of possible side effects to medication and possible symptoms of her medical conditions, to the extent that medication, including pain medication, had been prescribed, its administration alone did not show a lack of testamentary capacity. The physician’s recitation of the potential side effects of the various prescribed medications, including those that could impair cognitive functions, did not raise an issue of fact with respect to Dolores’ capacity in view of her medical records from the relevant time which consistently described her as alert and oriented. Nor did her receipt of mental health services raise a question as to her testamentary capacity. Emotional distress and anxiety do not render a testator without capacity.

Hubert and Melissa’s reliance on the recitation by Dolores’s’ physician of her various physical infirmities, including hypertension, coronary artery disease, Crohn’s disease, chronic obstructive pulmonary disease, epilepsy, and chronic anemia, was misplaced. The mere fact of the diagnosis of those ailments was insufficient to negate mental capacity. Old age, physical weakness or even senile dementia do not disqualify an individual from executing a will, as long as the testator was acting rationally and intelligently at the time the instrument was prepared and executed. That is what the contemporaneous evidence surrounding execution supported.

The extrapolation that the doctor made from the medical records reviewed was speculative at best. Hubert and Melissa relied on the doctor’s opinions to argue that Dolores’s sight and hearing were so impaired that she was unable to properly read or adequately hear people speaking to her. However, nothing in the record, including Melissa’s affidavit in which she averred that Dolores was “hard of hearing,” raised an issue with respect to her hearing or vision having an impact on her capacity to execute her will. The sole notation in the medical records about Dolores’ vision was that she self-reported to using a magnifying glass to read small print. And a report that she heard better from one side did not raise any doubt about her capacity.

Hubert and Melissa also relied on statements from certain medical records indicating that Dolores wanted to divorce Hubert or that her marital status was “single” or that she referred to Hubert as her ex-husband to argue that Dolores was confused about the purpose behind executing her will.  But nothing in this record suggested that Dolores did not know who Hubert was to her, and instead, such statements were representative of the nature of their actual relationship, it being undisputed that they were separated and lived apart for decades. No evidence appeared in the record to explain why divorce proceedings were never pursued by Dolores against Hubert, but the contradicted deposition testimony of the attorney-drafter, among others, was that Dolores was particularly aware of her family members. A dispute, if any, about the nature of Dolores’ decedent and Hubert’s relationship, whether allegations of abuse by Hubert were unfounded, or whether or not Dolores wanted to divorce Hubert, was not material to the inquiry regarding testamentary capacity. That Dolores may have apprehended the quality of her marital relationship differently than as assessed by Hubert and Melissa provided no basis from which to conclude that Dolores was not aware of her marital status or that she lacked the necessary capacity to execute a will.

Nothing in the evidence submitted by Hubert and Melissa provided a proper means of concluding that Dolores was not cognizant of her family relations. And the propounded instrument on its face particularly named them and explained the nature of the bequests to her three daughters.

Hubert and Melissa pointed to a stray statement that Dolores thought her Basquiat painting could be worth nine figures, rather than the eight figures for which it eventually sold, as grounds to infer that she did not understand the nature of the assets comprising her estate.  A testator need not have precise knowledge of her assets, rather, an awareness of or ability to keep in mind without prompting the general nature and extent of one’s real and personal property is expected. Here, the record established that Dolores was aware of her possessions and had a reasonable understanding of their possible value. That at some point she may have thought that what she knew to be her most valuable asset, the Basquiat painting, was worth more than the ultimate sale price did not demonstrate that she did not or could not grasp in her mind that she owned that valuable asset.

Hubert and Melissa also pointed out that Dolores sometimes voiced concerns about not having sufficient funds to cover her needs and expenses in an attempt to demonstrate that she did not appreciate her wealth. To the extent that there was any proof on the record that, during the applicable time, Dolores perceived herself to have financial hardship, such proof failed to raise an issue of fact regarding her understanding of her assets at the time of execution. Possessing valuable illiquid assets and having concern about covering day-to-day expenses were not necessarily at odds. Although Dolores was not financially independent, the record suggested she was generally aware of what she possessed. Moreover, reliance, if any, on her spouse for support had no bearing on the relevant inquiry to establish capacity.

Hubert and Melissa also proposed a theory that capacity was undermined in this instance by observations of Dolores’ good relationship with all members of her family, which was in contrast to her not including them in her will. The argument that Dolores could not have intended to leave disparate gifts to her children or made provisions for only some of her grandchildren, was just speculation about what she would have wanted, and the affidavits proffered in support of that claim did not raise a material issue of fact on this issue.

Hubert and Melissa failed to proffer evidence that any term of the propounded instrument was so unnatural or unreasonable as to cast doubt on Dolores’s capacity. The allegation in the affidavits of Melissa and long-time family friend Ray Dotoratos and doorman George Gregory Bruno that Dolores would never treat her children differently, even if true, was not contrary to the terms of the propounded instrument. Nor did their conjecture that it did not make sense that Dolores would have made express provision for certain grandchildren, the children of Belinda, and not her other grandchildren, the children of Melissa, raise a question of fact as to her capacity.

In April 2015, upon her discharge from a nursing home after hip surgery and rehabilitation, Dolores returned to her long-standing residence. A health aide, who apparently also slept there, indicated that there were bed bugs in the apartment and that she had been bitten. Hubert and Melissa would have Delores remaining in the residence after an inspection confirmed the presence of bed bugs to be indicative of her lack of mental capacity. That they may have run from the building upon being informed of the presence of bed bugs did not demonstrate that it was unreasonable for Delores to not have vacated immediately given her particular circumstances. Hubert and Melissa offered no proof that the situation was dangerous to Delores or that it made the residence inhabitable. And neither of the two options for treatment of the infestation offered by the company that conducted the inspection required that the apartment be vacated for more than hours at a time. Nor did Hubert and Melissa show that Delores initially had suitable alternatives in light of her physical condition or had liquid assets with which to secure temporary lodgings to meet her needs.

Finally, regarding capacity, Hubert and Melissa relied on an affidavit from an estate-planning attorney, with whom, following a referral secured by Melissa, Delores had a telephone consultation in August 2016, 15 months after execution of the propounded instrument and approximately one month before her death. The attorney stated in her affidavit that Delores did not know if the document she had executed with the assistance of Belinda in 2015 was a will and that Delores was concerned that the document she had signed did not reflect how she wanted her estate to be distributed. Such statements, even if in fact made by Delores, had no bearing on her capacity. Testamentary capacity–which is not destroyed retroactively by events happening after execution–was measured at the time of the will’s preparation and execution. The appropriate inquiry was whether the Delores was lucid and rational at the time the will was made.

The speculative and conclusory statements of the non-treating physician, of friends/acquaintances, and of Melissa did not provide sufficient evidence from which a proper inference that Delores lacked capacity could be made. Hubert and Melissa failed to raise a material issue of fact regarding Delores’ testamentary capacity, and that objection was dismissed.

Hubert and Melissa’s arguments as to a lack of due execution were dependent explicitly on whether Delores lacked capacity, the objection based on which did not survive the motion.  But they reiterated that there could have been no “actual intent” to sign by Dolores because she lacked the wherewithal to form it and that there could be no “meeting of the minds” with the attesting witnesses because she was incapable of understanding what she was doing in asking them to witness her signature. Rehashing their conclusory evidence as to capacity, however, fared no better when arrayed against their objection concerning the alleged undue execution of the March 4th instrument.

The proof established that the requirements of law had been satisfied. The propounded instrument was drafted by and executed in the presence of Amy Holzman, Esq., an experienced trusts and estates attorney. Holzman and her colleague, Hershkovitz, served as witnesses to the will’s execution. There was a presumption of regularity where a will’s execution was supervised by an attorney. And, in addition to their deposition testimony, the joint affidavit of the attesting witnesses was executed contemporaneously with the propounded instrument and indicated that Delores declared the instrument to be her will.

Hubert and Melissa suggested that Delores could have been more active or engaged during the execution ceremony, and they postulated that was evidence that she could not adequately see and hear. The testimonial evidence, however, was that Delores responded when the dispositive provisions of the will were read to her and when asked questions directly before signing. And allegations of Delores’ hearing and sight deficits were purely speculative and were supported only by Melissa’s statement that Delores was “hard of hearing” and a “self-report” by Delores of needing to use a magnifying glass to read very small print. But proof of poor vision was insufficient to overcome the presumption of due execution or raise questions of fact as to whether Delores was unable to read the will or understand its terms. Furthermore, the medical records for March 4, 2015 from the rehabilitation center stated that no “deaf and hard of hearing services” were needed by Delores at that time. Similarly, the records from the nursing home where decedent stayed after the rehabilitation center indicated that no audiology services were needed.

Having tethered claims regarding lack of due execution to those of capacity, which had been dismissed, and having provided no other evidence of a defective will execution ceremony, the Court dismissed the objection as to due execution.

Relief under a claim of undue influence is available in situations where the instrument offered for probate is the product of someone else’s wishes and not those of the decedent. Belinda had the task of establishing that the propounded instrument was a natural will by providing the affidavit and testimony of the attesting witnesses stating that Dolores was free from restraint in signing the will.

But to establish that a testator’s own volition was overcome, a showing of influence alone was not sufficient, but rather it must be “undue.” That means proof upon which an inference can be drawn that the actions complained of amounted to “a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained Dolores to do that which was against her free will and desire, but which she was unable to refuse or too weak to resist.

That showing required evidence of a substantial nature, even if circumstantial, of Belinda’s motive and opportunity, and that she actually exercised undue influence upon Dolores. As to motive, Hubert and Melissa relied on Belinda’s disproportionate pecuniary share under the offered will compared to her siblings. And further argued that she wanted to control or manage the sale of the Basquiat painting to further her reputation in the art business.

As to opportunity, the record before the Court reflected that, at least up to the execution of the propounded instrument, Belinda’s presence by her mother’s side at the hospital and rehabilitation center was not infrequent and that Dolores may have relied on Belinda to take care of some of her affairs during that period. In addition, there was proof that Belinda was acting as something of a “go-between” regarding communications with Holzman’s office for the penultimate, February 19th instrument. And Belinda also had contact with attorney-drafter Holzman on February 26, 2015, in advance of the preparation of the propounded instrument.

The parties disagreed on whether Belinda was in a confidential relationship with Dolores. If such a relationship was established, the one benefiting from a transaction arising in the course of the relationship must show that the transaction was free from overreaching and fraud. The discussion in this context also provided the Court with an opportunity to address Hubert and Melissa’s claims of constructive fraud, that was also premised on Belinda’s alleged improper use of confidential relations with her mother.

The Court addressed the quality of proof on questions of confidential relations between parent and child. In light of the natural affinity of a child for her parent, more than involvement in the parent’s life is required to establish such a relationship. Instead, there must be evidence of a mature child exercising control of the affairs of a dependent parent There was no proof that Belinda assumed control of Dolores’ finances in general. But there was proof that Dolores was somewhat dependent on Belinda during her hospitalization and her stay at the rehabilitation center after surgery. There was also proof that Belinda acted for Delores in that she advanced the funds for Holzman’s retainer for legal services related to the will drafting and execution, in addition to discussing and framing the will’s testamentary terms with Holzman alone.

Belinda contended that the mere fact that Delores executed a durable power of attorney and a health care proxy in her favor at the February 19th execution ceremony of the penultimate did not meet Hubert and Melissa’s burden here. While such acts may have indicated Belinda’s position of trust and Delores’ reliance upon her, they made no showing that Belinda actually used that document to conduct any transactions on behalf of Delores. In fact, the record established that the power of attorney remained in the custody of the attorney.

Whether a confidential relationship exists between parties to a transaction is measured at the time of the subject transaction. So the Court could not ignore the circumstances that included Belinda’s conduct of providing substantial assistance to Delores during her hospitalization; Delores’ significant medical conditions, including a broken hip, surgery, and recovery, and her being in a situation of dependence; and Belinda’s direct involvement in obtaining the will’s execution including her communication with the attorney-drafter and, in particular, communicating testamentary wishes to the attorney-drafter.

The Court concluded that Hubert and Melissa had submitted sufficient evidence to raise a question as to whether Belinda could have and did assume such control of Delores’ affairs during her hospitalization and rehabilitation that she could be considered to be in a confidential relationship with her mother at the time the propounded instrument was executed. Some cases have held that the support, care, or natural affection provided by an immediate family member sufficiently explains a disproportionate bequest. But where there is doubt, as arises from all the circumstances present here, the issue was one for the trier of fact.

Familial relationships often give rise to at least a factual issue regarding a confidential relationship. So a jury should find whether such a relationship existed between Delores and Belinda.

But could the proof offered by Hubert and Melissa provide a basis for a finding that undue influence was actually exercised. Hallmarks of such exercise are involvement in the drafting and execution of the will instrument, including procuring and communicating with an attorney for the transaction, holding a position of trust, working in secrecy and shielding a testator from contact with others, the condition of the testator, and a significant unexplained departure from a prior testamentary plan in favor of a trusted individual.

Here, the Court found that nothing in the record indicated that Dolores was ever prevented from seeing or communicating with anyone. Melissa’s affidavit however, stated that Belinda, when asked by Melissa, feigned ignorance of the provisions of Delores’s newly executed will. And that Dolores told her, at some point after being released from the rehabilitation center, that Belinda and Alison Wolfson tricked her and that she might have executed a will which did not provide “what she wanted for her children.” While such testimony could be excluded at trial under New York’s “Dead Person’s” statute, it was not the only evidence in support of an inference of actual exercise of undue influence that was proffered—and was available to defeat summary judgment.

Hubert and Melissa pointed out that attorney-drafter was procured by Belinda, following decedent’s fall and while she was in the emergency room prior to the creation of the February 19th instrument. Belinda was involved in communicating Delores’s wishes to Holzman.  Belinda did not remember meeting Holzman in her offices. Belinda advanced or paid the funds for Holzman’s retainer. And the March 4th instrument was an unexpected departure from her 1999 estate plan in light of the professed good relations that Dolores had with her children and grandchildren. Although Belinda did not suggest the attorney-drafter, that reference was still obtained through someone who could be considered aligned with her interests. Even though the reference was through another and may be of differing probative force as a result, it was still a factor to be considered as it was Belinda who initially made contact with Holzman’s office in February 2015.

Proof of no involvement in the will drafting and execution may result in summary dismissal of undue influence claims. But that was not the case here– and there appeared to be more involvement by Belinda than merely serving as an agreed-upon conduit for attorney document transmittals, including advancing payment for services and lengthy discussions with the drafter regarding Delores’ wishes.

There was no of evidence of an impaired relationships among Delores and her children’s families. Nor was Delores’ plan to benefit Belinda primarily one of long standing. And Belinda’s assertion that the changes by Delores were fully explained in the text of the instrument and in conversations with the attorney-drafter was not completely precise. The change to benefit only Belinda’s children to the exclusion of Melissa’s was not explained.

Familial closeness may, in certain instances, counterbalance any inference of improper influence. But, in light of the significant shift in Delores’s estate plan, which was procured at least in part with the aid of its new primary beneficiary, and her involvement in the drafting of the instrument for her hospitalized and frail mother, the facts and circumstances here, the question of whether Belinda acted out of family duty and affection or from a more personal motive, and exploited her position of trust to impose her wishes on Delores’ was an issue of fact requiring a full airing at trial.

An affirmative fraud is different from constructive fraud. But Hubert and Melissa did not provide evidence that a misrepresentation or deceptive false statement were made to Dolores by Belinda or anyone else, let alone one which caused her to execute the propounded instrument disposing of her property differently than she would have in the absence of such a misrepresentation or false statement.

The evidence on which Hubert and Melissa relied to show that a false statement was made to Delores were equivocal selections from Belinda’s deposition transcripts indicating that Belinda’s family may have been struggling financially, but that Belinda elsewhere denied disclosing it in those terms to her mother or did not recall if she had disclosed it. Belinda also testified that she “might have” discussed what monies she was making with Delores and that her mother knew that Belinda was not making money. Further, Belinda stated that sometimes she had in fact become nervous about buying food for her children. And transcriptions of voicemails left by Delores for Belinda, in particular one from a November 10, 2015 phone call—eight months after the will was signed —indicated that Delores would pay for some food and meals and some tutoring for Belinda’s children, her grandchildren.

Hubert and Melissa weaved out of whole cloth a conspiracy that Belinda contrived poverty to extract assets from an unwilling, loving grandmother. Even if Belinda requested assistance from her mother, drawing from the evidence the conclusion that she misrepresented her financial condition to her mother and that the misrepresentation was what caused Delores to dispose of her assets in the manner that she did was purely speculative. The relative financial positions of the parties were not controverted and argument was not proof, and, without more, requesting, importuning, or even begging a close relation for aid or assets did not constitute affirmative fraud.

Hubert and Melissa’s fraud objection to the extent premised on misrepresentations having been made by Belinda to Delores was dismissed.

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