New York County Surrogate Nora Anderson issued a decision on February 18, 2014, in the pending will contest In the Matter of the Accounting of Martin Ephraim, as Fiduciary of the Deceased Executor, for the Estate of Ronald D. Myers, No. 2006/4109 (N.Y. Surrogate’s Court, N.Y. County), which surprisingly relied on old New York cases to prefer the mother of the decedent over his surviving same-sex partner in distributing disputed assets of the estate, despite language in the decedent’s home-made will suggesting otherwise. Ephraim’s attorney, Karen Winner, has filed a motion for reargument, contending that the court’s decision overlooks significant precedents from the past 30 years establishing the “family” status of cohabiting same-sex partners. The opinion supports the view that wills made without the assistance of somebody knowledgeable in the law of estates are a risky business.
The problems in this case stem from a home-made will by Ronald D. Myers, made in 1981 without the assistance of a lawyer. At that time, Myers and his partner, Dr. Robert Ephraim, had been together for eleven years. In the will, Myers designated his mother and Dr. Ephraim as executors, but when Myers died in 2006, his mother renounced her appointment, so Dr. Ephraim served as the sole executor.
In the will, Myers stated: “I give, devise and bequeath all monies will be left to my Mother, Roberta F. Long. And that all Stocks of I.B.M. will be left to Dr. Robert Ephraim. And also all personel [sic] property will be left to Dr. Robert Ephraim.” The will also provides that if Myers and Ephraim both died at the same time, “all personel property” would be left to his brother, and if his mother predeceased him, all property would be left to Dr. Ephraim. He also wrote, “If the death of my Mother occurs first, then in that case all property will be left to Dr. Robert Ephraim., this would include all monies., and all personel effects totally.”
As it happened, Myers’ mother survived him, and Ephraim, acting as executor, paid over to her all the money in the estate, about $40,000. At his death, Myers owned a substantial portfolio of stocks, including but not limited to I.B.M., which Ephraim transferred to himself, treating the non-I.B.M. stock as “personal property.” Myers’ mother then died intestate, and her administrator filed an objection to how Ephraim had distributed the stock, arguing that Ephraim was entitled under the will to inherit only the I.B.M. stock and Myers’ “personal effects.” Ephraim then died, and his brother is now serving as fiduciary in his stead. So the lawsuit is now a battle between the heirs of Mrs. Long and the heirs of Dr. Ephraim over the non-I.B.M. stock, which constitutes the bulk of the value of the estate.
Counsel for Ephraim argued that the language of the will is clear that the only inheritance for Mrs. Long was the money in the estate. (Not mentioned in the court’s opinion but stressed in a motion for reargument is that Myers had also purchased annuities for his mother valued at $165,000, which passed to her outside the estate.) Counsel also argued that at the time Myers made the will, the only stock he owned was I.B.M. stock, so that no inference should be drawn that he did not intend Ephraim to inherit other stock that Myers might own at the time of his death. Counsel for the Long heirs argued that by specifying the I.B.M. stock as Ephraim’s inheritance, Myers intended him to have only that stock and that other stock should be treated as “money” rather than “personal property” and distributed to the Long estate, claiming that any other interpretation of the language of the will would be “nonsensical.”
Surrogate Anderson wrote that construction of the will “must take into account the peculiar facts and circumstances attending the will’s execution, including the relation of the parties where possible, the scheme disclosed, the language chosen by the decedent, and the intention gleaned from the language and the general situation. If a dominant purpose or plan for distribution is discerned, ‘the individual parts of the will must be read in relation to that purpose and given effect accordingly.’” Citing very old cases, she continued, “In cases in which discovery of a decedent’s intent is more difficult, courts have employed a presumption in favor of the testator’s relatives as against unrelated persons.” She also said that reference to “money” in a will depends on context and sometimes may refer to “securities” and “stocks,” and that sometimes the term “personal property” may refer to “personal effects.” In Myer’s home-made will, these latter terms are both used.
Throughout her opinion, Anderson referred to Ephraim as Myer’s “friend,” although she clearly indicated understanding that the men had lived together more than 30 years. She apparently did not consider them to be “relatives” for purposes of any presumption about testamentary intent. Without being totally explicit about it, she seemingly applied the “presumption” to favor the mother over the “friend.” Furthermore, she suggested that in 1981 Myers expected his mother “to live a good many years more and, therefore, to want to plan for her accordingly.” She found a lack of clear evidence as to whether Myers only owned I.B.M. stock when he made the will in 1981, focused on the “limiting language” in the bequest to I.B.M. stock, characterized the bequest of “all monies” to the mother as “without qualification or limitation,” and concluded, “Such lack of limitation combined with decedent’s use of the plural form ‘monies’ favors a broad reading of the mother’s bequest.” She also applied an old legal maxim that by specifying I.B.M. stock in the bequest, Myers intended to exclude other stock. Judge Anderson reasoned that by separately mentioning stock, Myers considered it separate from other “personal property,” and that the proviso about “all personal property” going to the brother if Myers and Ephraim died simultaneously would, if interpreted as Ephraim contended, mean leaving everything but Myers’ cash accumulation to his brother, who was otherwise unmentioned in the will. (Also unmentioned in the will were Myers’ father, who was living when the will was made, and any other relatives.)
“Based on a sympathetic reading of the will and the facts and circumstances of the will’s framing,” the judge concluded, “the court construes the bequest to decedent’s mother of ‘all monies’ to encompass decedent’s non-IBM securities.” The court found that the objecting party had met her burden to establish as a matter of law that Ephraim erred in distributing the non-I.B.M. stock to himself, and she granted summary judgment to the mother’s estate.
As mentioned above, counsel for Ephraim has filed a motion seeking reargument, contending that the court had improperly relied on a testimonial presumption that failed to recognize the family relationship between Myers and Ephraim and had adopted an interpretation of the will that is contrary to what one would expect under the circumstances of this case, with a surviving long-term partner and a mother who was provided substantial annuity contracts in addition to whatever money was in the estate at Myers’ death. To the extent that the decision relies on a presumption that predates modern LGBT family law developments in New York, it would seem ripe for reconsideration (or possible reversal by the Appellate Division).
This case certainly illustrates the risk of home-made wills that leave room for interpretations that might contradict the intent of the testator. As Myers accumulated more stock beyond whatever holdings of I.B.M. he had in 1981, it would have been prudent to revise his will to make clear how the stock should be distributed upon his death, rather than leaving it to a court to resolve the almost-inevitable will contest that might arise if large sums are involved. But a lay person might not be aware of legal canons of construction and the possibility that mention of one company’s stock might be interpreted by a court to mean that he didn’t intend to leave other stock he might own at his death to his surviving partner.Tags: canons of construction of wills, Holographic wills and same-sex partners, home-made wills, New York County Surrogate Nora Anderson, New York estates law