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After Half a Century, Surviving Same-Sex Partner Tries to Inherit His Partner’s Estate

Posted on: October 25th, 2016 by Art Leonard No Comments

It seems that anything that could go wrong did go wrong – legally speaking, that is – when William Cornwell died on June 19, 2014, believing he had made a will leaving his entire estate to Thomas Doyle, the man with whom he had shared his life for more than half a century. Cornwell had not involved a lawyer in preparing and signing the will, apparently, because no lawyer would have made the simple mistake he made: getting only one person to witness the will.  After Cornwell died, Doyle turned to Sheila McNichols, Cornwell’s niece and a longtime friend to the two men, “for comfort, support and advice,” said Doyle in a sworn petition filed this month in the New York County Surrogate’s Court.  He showed her the will, and she suggested taking it to her lawyer, Peter Gray, to handle probate.


Gray immediately saw the problem. The New York courts will not accept a will unless there are at least two sworn witnesses to the signing.  Indeed, the will form that Cornwell used had spaces indicated for two witness signatures, but one was blank.  The instruction sheet that came with the will form did not specifically say that two witnesses were required, although the instructions referred to witnesses in the plural several times.  Gray advised Doyle that the will could not be accepted for probate, and because the men had never married, Doyle had no rights as a surviving unmarried partner.  The estate would go to Cornwell’s intestate heirs, two nephews and two nieces, all living in California, three of whom had virtually no relationship with Cornwell or Doyle.


This was a big blow to Doyle, now 85, because his living arrangements depended crucially on the rental income from the other apartments in the West Village brownstone on Horatio Street where he and Cornwell had lived together since 1961, and his ability to continue occupying the ground floor apartment without paying rent. Although they had moved in as tenants after living together elsewhere beginning in 1958, in 1979 the owner decided to sell the building and Cornwell, who had greater resources to finance the purchase, bought it, setting up a corporate entity to own and operate it, and putting Doyle on the board. That building and the rental income it generates is the estate’s main asset.  Cornwell and Doyle had lived on their social security checks and the rental income.  Now Doyle was reduced to his individual monthly social security check (smaller than Cornwell’s, because Cornwell had the good paying job while Doyle was a freelancer with sporadic income), having no pension or other resources.


Although the men lived together and considered themselves spouses, they had never taken any step to formalize their relationship. In the time they lived together, New York City had passed a domestic partnership ordinance in the 1990s, then in this century surrounding states and finally New York State in 2011 had changed their laws to allow same-sex couples to marry, but these men never registered their partnership or formally married.  Doyle says they were planning to marry, and had even purchased rings in anticipation of a ceremony, but in the end it seemed too much of an effort, as Cornwell was in poor health for some time prior to his death. The only legal documents of their relationship are health care proxy forms the men had made in 2002 (properly witnessed by two people, by the way), and joint bank account statements.


According to Doyle, McNichols told him that she felt this situation wasn’t right, Doyle should not be shut out after more than 50 years. She retained Gray to draft an agreement by which the heirs would renounce their interest in the estate in favor of Doyle, and provide that the ownership of the building would go to Doyle as well.  At the same time, Doyle would execute a will leaving everything to McNichols.  This plan seems to have proceeded at first, since Doyle’s attorney attached to the petition a copy of McNichols’ signed agreement to renounce her inheritance, as well as an affidavit she signed for filing in the probate court. Doyle swears that he trusted and relied on McNichols to help him with decisions, named her as his power of attorney and made her joint owner of his bank account.  He depended on her to convince the other relatives to fall in with this plan.


But the other heirs were not willing to go along with it. Doyle claims that the two nephews had never even met Cornwell, and the other niece only met him fleetingly as a child, and none of them knew Doyle. Evidently the allure of a monetary windfall from a “rich uncle” was too powerful. Suddenly, Doyle was confronted with the contention that the papers McNichols signed were not valid, merely “samples,” that McNichols and one of the nephews had been appointed by the Surrogate to administer the estate, to sell the brownstone, and to split up the proceeds among the heirs.  Indeed, according to a New York Times article published on October 23, the building is now in contract for about $7 million.  The Times also reports (although Doyle does not mention it in his petition), that the nieces and nephews offered to let Doyle continue living in the building by including a clause in the sales contract under which he can stay for up to five years at a nominal rent of $10 a month, and that he would receive $250,000 from the proceeds of the sale, but Doyle, stiffened by the heirs’ resistance, decided to sue for the full inheritance he claims Cornwell intended to leave him.


Although he didn’t have a retainer agreement with Gray, Doyle says he regarded Gray as his attorney and trusted him to advise on how to protected his legal rights, but Gray never suggested any legal strategy to advance Doyle’s claim. Doyle says that some friends suggested he get another legal opinion, so he spoke with Polly Eustis, who confirmed Gray’s opinion that Doyle had no standing to inherit Cornwell’s estate.  Eventually, however, he found Arthur Schwartz and Jamie Wolf, his current attorneys, who have devised a new strategy on his behalf.


It seems that Doyle and Cornwell had gone to Pennsylvania in 1991 to purchase a show dog together, and Doyle has the American Kennel Club registration certificate with the date of the sale, listing the two men as the owners. He also claims that they had a good friend in New Hope whom they visited several times on vacations.  The significance of this is that under Pennsylvania law until January 2005, cohabiting individuals who spent time together in that state could be considered to have a common law marriage, and New York courts have recognized Pennsylvania common law marriages in determining whether an individual who was not formally married to a partner is to be considered a surviving spouse.  Doyle’s lawyers have constructed an intricate argument based on New York and Pennsylvania cases seeking to persuade the Surrogate’s Court that Doyle should be recognized as Cornwell’s sole heir, the surviving spouse of a man who had no children, and thus should inherit the entire estate.  Their argument crucially depends on a court retroactively applying last year’s Supreme Court Obergefell marriage decision more than a decade into the past in order to find that two men spending time living together in Pennsylvania prior to 2005 had a common law marriage that New York will recognize.  The will that Cornwell signed may not be admissible for probate, but it would be admissible as evidence to support Doyle’s claim that the two men considered themselves to be married and that Cornwell planned to leave everything to Doyle.


This is a difficult argument to make in retrospect, so Schwartz and Wolf face an uphill battle in the Surrogate’s Court. Doyle’s petition is vague on some of the kinds of facts that would be helpful to his case, such as exactly when and for how long he and Cornwell stayed in New Hope on their vacation trips.  All the affidavits submitted with the Petition to bolster his case come from Doyle’s relatives and neighbors in New York.  There are no affidavits from anybody in Pennsylvania to corroborate Doyle’s recollections about those trips.  The affidavit by Sheila McNichols, signed two years ago, refers to the men as lifetime partners and domestic partners, but not as spouses.    This isn’t surprising, since it was prepared under Gray’s supervision, before Doyle met his current lawyers, who first suggested the common law marriage theory after interviewing Doyle about the details of his relationship with Cornwell and their lives together.  New York court decisions have accepted common law marriage arguments based solely on the testimony of the alleged surviving spouse, but the cases have usually mentioned more details that a court would likely rely upon to support marital intent, such as the couple having had a religious ceremony or exchanged rings before a gathering of friends.


Doyle’s lawyers will also have to convince the court to waive various deadlines that were missed while Doyle was letting McNichols and Gray take the lead in handling the estate affairs. Doyle’s claim should have been filed shortly after Cornwell’s death, not more than two years later, but he argues in his petition that he only recently learned from his current attorney about his legal right as a common law surviving spouse.  In a written argument accompanying the petition, Schwartz and Wolf contend that Doyle had reasonably relied on Gray and McNichols’ assurances that he would be taken care of, and he “did not think that he needed to pursue any sort of litigation to inherit from this estate.”


There are plenty of cautionary tales here for couples in similar situations. If significant property is involved in a relationship, getting a competent lawyer to prepare and supervise the execution of legal documents (including wills) is essential.  Whether to marry is a decision that couples need to weigh carefully, but the benefits in terms of inheritance rights are substantial, especially taking into account the spousal deduction if an inheritance will be large enough to generate federal or state tax liability.  Even at the mundane level, surviving spouses may get a death benefit from social security or from the decedent’s employer’s benefits plan, and monthly social security payments at the higher rate enjoyed by their deceased spouse.  These men first got together when these things weren’t spoken about, and the idea of same-sex marriage seemed a pipe dream in 1958!  Unfortunately for Doyle, they failed to keep up with the times.


The case is pending before New York County Surrogate Nora Anderson, who signed the document appointing the co-administrators and authorized the sale of the building.


Dangers of Home-Made Wills Shown by New York Appellate Ruling

Posted on: July 13th, 2015 by Art Leonard No Comments

A New York Appellate Division four-judge panel has affirmed a ruling by New York County Surrogate Nora Anderson that Ronald D. Myers’ home-made will should be construed to leave his stock portfolio, apart from some IBM stock, to his mother rather than to his same-sex life partner.  Ephraim v. O’Connor, 2015 WL 4002277 (N.Y. App. Div., 1st Dep’t, July 2, 2015).  The ruling turned on the ambiguities of a document drafted without the assistance of a lawyer and the application of standard rules of contract construction that appear to contradict the likely intention of the gay testator.

In his will, Ronald Myers wrote that he left “all monies” to his mother, and “all stocks of I.B.M.” and “all personal property” to his life partner, whom he referred to as his “close friend.” He designated his mother and his life partner to be co-executors.

At the time he made his will, Myers’ sole stock ownership was I.B.M. shares, but by the time of his death his portfolio included other significant stock holdings.  He never revised his will to explicitly indicate how the rest of his stock should be distributed.  The dispute between the co-executors was whether the rest of the stock portfolio would go to Myers’ mother or his life partner (who is not named in the court’s opinion, the case being litigated by Martin Ephraim as “fiduciary of the deceased executor for the Estate of Ronald D. Myers”).

The surviving partner argued that corporate stock is “personal property” and thus should go to him.  Myers’ mother argued that by specifically designating I.B.M. stock to his partner, Myers signaled that he did not intend his other stock to go to the partner as well.

New York County Surrogate Anderson opted for the mother, who is now deceased as is Myers’ former life partner, so the dispute is actually between successors in interest on both sides.

Attorney Tom Shanahan, representing the fiduciary for the deceased life partner, argued that the stock should come within the term “personal property” rather than “monies” and go to his client, and that Surrogate Anderson had improperly favored the mother over the life partner in resolving this interpretive dispute, based on a traditional preference of resolving ambiguities on inheritance in favor of legal relatives.  Farrell Fritz, attorney for the mother’s estate, pressed the general rule of construction that the specific bequest of I.B.M. stock implies that Myers did not consider his other stock holding to come within the general category of “personal property” so it should go to the mother.

The Appellate Division was not sympathetic to Shanahan’s argument, writing: “The court properly interpreted the will as intending to bequeath to decedent’s mother the stock in companies other than IBM, in view of the limiting language of the bequest to his life partner and the broad language of the bequest to his mother.  If decedent viewed stock as ‘personal property,’ he would not have expressly noted the bequest of the IBM stock, since it would have been included in the more general bequest to his life partner.”  Since Myers did not own any stock other than I.B.M. stock at the time he wrote the will, one could argue that his failure to mention other stock specifically was not evidence of such an intention, but rather the oversight of somebody unaware of the intricacies of drafting wills.

Finding that the court’s reliance on this linguistic distinction was “proper,” the court also found that because the will itself referred to the partner as his “close friend,” the court’s “reference to decedent’s life partner as a ‘friend’ does not show that the court relied on a presumption in favor of relatives or that it marginalized or disregarded decedent’s long-term relationship with his life partner.”  Thus, the court rejected Shanahan’s argument that Surrogate Anderson’s reference to the surviving partner as a “friend” of Myers in her opinion was dismissive of the men’s relationship.  Of course, at the time the will was made many years ago, it might have been prudent for a gay testator to refer to his partner as a “close friend,” since a reference to somebody as a “lover” could open the door to “undue influence” arguments, which had traditionally been raised by surviving legal relatives in contesting gay people’s bequests to their surviving partners.  At the time this will was drafted, New York State did not provide any legal status for same-sex partners, so Myers’ partner could not have been referred to as a “spouse” or “husband.”

New York Court Rejects Challenge to Gay Man’s Will

Posted on: June 23rd, 2015 by Art Leonard No Comments

New York County Surrogate’s Court Judge Nora Anderson has rejected a challenge to the will of Mauricio Leyton, a gay man who had designated his former lover as executor and a principal beneficiary under a will he made in 2001, a year before the men had a commitment ceremony and several years before they ceased to live together as partners.  Leyton’s mother and sister had challenged the will, arguing that David Hunter was disqualified under a New York statute providing that a “former spouse” cannot inherit.  On June 16, Surrogate Anderson granted Hunter’s motion to dismiss the challenge. The case is Matter of Mauricio Leyton, Deceased, No. 2013-4842/A/B (N.Y. County Surrogate’s Court).

Leyton and Hunter were longtime friends of ten years’ standing when Leyton signed his will on January 11, 2001.  He appointed Hunter to be his executor and a major beneficiary, leaving him all of his personal property and one-half of the residuary estate, which ultimately included real property as well.  The will referred to Hunter as “my partner David,” according to a June 23 report about the case in the New York Law Journal.  In 2002 the men had a commitment ceremony at the Ritz-Carlton Hotel, which they described in printed invitations as a “Ceremony of Union and Commitment,” during which the officiant said that the couple was entering a “state of companionship, compromise, creativity and commitment that the world recognizes as marriage.”  The officiant also noted that the state did not recognize this union, but commented, “Fortunately, this is of no importance.”

Leyton and Hunter did not register as New York City civil union partners and ceased to live together around 2008, but remained close friends, owning some property jointly and maintaining some joint accounts.  They signed a document at the time of their breakup in which, according to the Law Journal account, Leyton “expressed interest in buying out Hunter’s ownership in a cooperative apartment and lending Hunter $40,000 to buy another apartment.”  They also co-owned some property on Long Island as joint tenants with rights of survivorship.  After New York passed its Marriage Equality Law in 2011 Leyton served as the official witness when Hunter married another man.  In all this time Leyton never revoked the original will or signed a new one.  Leyton suffered a fatal heart attack in December 2013 while traveling.

Hunter filed the will for probate in 2014, and Leyton’s mother and sister, residents of Chile, sought to contest Hunter’s appointment as executor and status as a beneficiary.  They argued that the court should treat Hunter as a divorced spouse, emphasizing the words of the officiant at the commitment ceremony, and arguing that but for New York’s unconstitutional refusal to allow same-sex marriage at the time, the men would have been married.  They relied on a recent Connecticut Supreme Court decision, which had accepted such a “would have been married” argument in connection with a loss of consortium claim filed by the survivor of a lesbian relationship in the context of a medical malpractice claim.

Surrogate Anderson did not mention the Connecticut case in her opinion, focusing her analysis entirely on the New York statute.  “Respondent (Hunter) points out that at the time the commitment ceremony was performed, it was not cognizable in State law as formalizing a marriage, and that his subsequent break with decedent therefore was not ‘separation,’ ‘abandonment,’ or ‘divorce’ within the meaning of the statutes cited by petitioners.  Those statutes, EPTL 5-1.2 and 5-1.4, respectively spell out circumstances under which a spouse is disqualified as a ‘surviving’ spouse for the purposes of inheritance and other family rights and under which a disposition to or fiduciary appointment of a spouse under a will is revoked,” she wrote.  She insisted that “it is the province of the Legislature to decide questions regarding same-sex marriage,” referring to the New York court decisions rejecting constitutional challenges to the pre-2011 marriage ban.  “Here, petitioners seek to have this court apply the Marriage Equality Act retroactively to the commitment ceremony, deeming that ceremony as formalizing a marriage and the subsequent separation as a divorce.  Given that the Legislature did not authorize same-sex marriage until 2011, this court cannot deem the commitment ceremony to have sanctified a marriage, so decedent and the executor cannot be deemed to be divorced.”

Thus, Surrogate Anderson ruled that the petition should be denied and Hunter’s motion to dismiss be granted.

Hunter is represented by Matthew Raphan, an associate of Brian A. Raphan P.C. in Manhattan.  The mother and sister, Fidelisa Eliana Latorre Figueroa and Ana Marie Leyton Lattore, are represented by Stanley Ackert III, who is contemplating filing an appeal.


New York County Surrogate Applies Archaic Family Priority Rules in Dispute over Estate of Gay Man

Posted on: July 11th, 2014 by Art Leonard No Comments

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.