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"Death Bed" "Quickie" Marriages Held to be Void Ab Initio by Appellate Division

Elder abuse, including the financial exploitation of elderly individuals, especially by non family members, who have become mentally incapacitated[1] is an unfortunate and growing problem in our society. The unique vulnerabilities of those abused, the easily overlooked evidence of such abuse, and the sometimes invisible nature of the abuse itself, make this a difficult issue to both recognize and address, even by those closest to its victims.  This abuse, compounded by individuals seeking to profit from their abuse and seemingly statutory loopholes allowing them to do so beckoned judicial intervention. It is no wonder that a series of recent first and second department cases have issued rulings seeking to bolster the rights of the elderly and their families.  The recently decided Campbell, Birk, and Kaminster cases illustrate a new and emerging trend in Elder abuse involving situations where young caretakers providing healthcare and daily support for elderly patients, secretly marry the much older, and mentally incapacitated individual, in an attempt to later claim the statutory right of election provided under the Estates, Powers and Trusts Law (“EPTL”), Section 5-1.1-A.[2]This tactic cleverly avoids the disqualification provisions of EPTL 5-1.2[3], as the abuser remains the legal “surviving spouse” as of the date of the sham marriage and is entitled to one-third of the decedent’s estate despite it being the product of their abuse.The judiciary has directly confronted this trend of elder abuse, and refused to allow it to take refuge behind the black letter of the law where it may try.[4] In these scenarios, the Courts have exercised their equitable power to prevent an unjust result where the evidence and circumstances so demand it.  The Court’s mandate to use their discretion in situations such as these is the essence of the common law, and is a principle that is clearly alive and well.Campbell v. ThomasCampbell v. Thomas[5] involved a 72 year old decedent who was diagnosed with terminal prostate cancer and severe dementia in 2000.[6]  He required 24 hour supervision which was in turn undertaken by his daughter.[7]  In February, 2001, his daughter took a one week vacation and entrusted her father’s care to the petitioner, a 58 year woman who had full knowledge of her patient’s incapacity and many health issues.[8]  During the daughter’s one-week absence, the petitioner married the decedent and transferred approximately $150,000.00 of the decedent’s assets into joint accounts and changed the decedent’s $147,000 retirement plan, naming herself as the sole beneficiary.[9]  The decedent died six months after the marriage in August, 2001.[10]Upon the filing for the probate of the decedent’s Last Will and Testament with the Putnam County Surrogate’s Court, the petitioner filed her right of election.[11]  The Court declined both parties’ motions for summary judgment, which was subsequently appealed.[12]  The Appellate Division granted the motion for summary judgment in favor of the decedent’s children, stating that the decedent lacked the capacity to marry.[13]  The Surrogate’s Court entered said judgment declaring the marriage null and void due to the decedent’s lack of capacity.[14]  The petitioner appealed this decision.[15]The Appellate Division ruled that the petitioner “technically had a legal right to an elective share as a surviving spouse” under the EPTL.[16]  The Court stated that when a marriage is annulled after a person’s death on the grounds of mental incapacity, the statutory law requires that the decedent’s spouse be treated as a “surviving spouse” with a right of election against the estate of the decedent.[17]However, the Appellate Division, exercising their equitable powers, refused to enforce the petitioner’s right to her elective share.  The Court stated that EPTL 5-1.2[18] should not be read strictly if to do so “would be to ordain the statue as an instrument for the protection of fraud.”[19]  Doing so, the Court added “would seemingly invite … a plethora of surreptitious deathbed marriages….”[20]  The Court emphasized the fact that the caretaker knew of both the decedent’s declining health and mental incapacity, and should be prevented from benefitting from her wrongdoings.The Court invoked the equitable principal of “‘[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon hi sown iniquity, or to acquire property by his own crime’”,[21] found in the famous case of Riggs v. Palmer,[22] wherein, a grandson, who was named as a beneficiary in his grandfather’s will, murdered his grandfather in an effort to obtain “speedy enjoyment” of his inheritance and to prevent his grandfather from making future alterations to his testamentary plan.[23]  The Court, in refusing to allow Palmer to profit from his own wrongdoing, disinherited him.  Although the conduct of the caretaker was not as egregious as that of Mr. Palmer, the Court applied the same equitable principals.The Appellate Division further stated that in its determination that the caretaker had forfeited her right of election, the Court was not attempting to “displace legislative authority, but complement[s] it”[24] as it was not the intent of the legislature, when it passed EPTL § 5-1.2 for such actions to be considered exceptions to the disqualification provision.  The Appellate Division “was compelled to assert its equitable powers not only ‘by the need to protect vulnerable incapacitated individuals and their rightful heirs,’ but also protect the integrity of the courts.”[25] Matter of Irving BirkThe Matter of Irving Birk[26] involved an extremely successful businessman whose health began to fail as he aged.  Mr. Birk suffered from memory loss and his physical condition had deteriorated to the point that he required a wheelchair and caretaker at all times.  Accordingly, his family obtained the services of the petitioner, a then 40 year old woman, who was hired as the decedent’s live-in caretaker.In June of 2005, after seven years of caring for Mr. Birk, petitioner, then 47 years old, took the 99 year old decedent to the New York City Clerk’s Office where they were married.[27]  Approximately one year after the marriage, the decedent died. Neither the petitioner nor the decedent told anyone of their marriage during his lifetime.[28]  While traveling to the funeral home, petitioner finally advised the decedent’s two children of her marriage to the decedent.[29]  Upon the offering of the decedent’s Last Will and Testament for probate with the Kings County Surrogate’s Court, the petitioner filed her petition to have the Court determine the validity of her right of election against the decedent’s estate, which was in excess of five million dollars.[30]The Kings County Surrogate’s Court granted the petitioner’s motion for summary judgment, declaring the petitioner’s election against the estate, pursuant to EPTL §5-1.1-A, valid.  The decedent’s children appealed.[31]The Appellate Division, Second Department, reversed the Surrogate’s Court decision.[32]  Relying on the Campbell v. Thomas[33] case, the Court determined that the decedent’s sons tendered enough evidence from which a trier of fact, being the Surrogate’s Court, could properly determine if the petitioner forfeited her statutory right of election.[34]  The Court determined that the petitioner, “knowing that a mentally incapacitated person was incapable of consenting to a marriage, deliberately took unfair advantage of the incapacity by marrying that person for the purpose of obtaining pecuniary benefits that become available by virtue of being that person’s spouse at the expense of that persons’ intended beneficiaries.”[35]The Court cited several instances in support of its decision, including that in April, 2005, during the time where the petitioner was serving as the decedent’s live-in caretaker, the decedent was diagnosed with dementia by a physician who opined that the decedent’s mental state was such that the decedent was “incapable of … enter[ing] into binding contracts.”[36]  In addition, the decedent’s long-time primary-care physician, who added that the decedent was “incapable of properly managing his social affairs,” confirmed this diagnosis.[37]  Furthermore, a witness testified that at the civil ceremony, the decedent, although dressed in a tuxedo, did not appear to be “lucid or aware of his circumstances.”[38]The Court remanded the case, seemingly giving guidance to the Surrogate’s Court by stating “[s]hould the trier of fact so determine, equity will intervene to prevent the petitioner from becoming unjustly enriched from her wrongdoing, as a court cannot ‘allow itself to be made the instrument of wrong.’”[39]Estate of Richard KaminesterIn the Estate of Richard Kaminester,[40] the decedent’s daughter sought a determination as to the validity of the petitioner’s right of election against her father’s estate.  The petitioner, who was the decedent’s caretaker, married the physically and mentally ailing decedent in March, 2006, shortly after both a Texas and New York Court found the decedent to be incapacitated.”[41]  The caretaker, who was present at the Article 81 Hearing, pursuant to the Mental Hygiene Law of New York, concealed the marriage from the decedent’s family as well as from the Court.[42]It was discovered that shortly before their marriage Mr. Kaminester’s caretaker transferred the beneficiary designation of the decedent’s $1.6 million dollar life insurance policy into her name, and shortly after their marriage the caretaker transferred the ownership of the decedent’s $2 million dollar house into both his and her name.[43]  In May, 2006 the decedent died, his marriage to the caretaker remaining a secret.[44]After the decedent’s daughter filed a petition for probate, the caretaker filed her right of election.[45]  The decedent’s children claimed constructive fraud and equitable estoppel and sought to have the petitioner disqualified from making a right of election.[46]  They relied on the posthumous decision of the Article 81 Court, which the decedent’s daughter sought by order to show cause, which stated that the marriage was void due to the decedent’s incapacity.[47]  In response, petitioner claimed that under EPTL 5-1.2, her right to elect became “fixed and unalterable”[48] at the moment decedent passed, and could not be subject to posthumous annulment.The Article 81 Court invoked Mental Hygiene Law 81.29(d),[49] which states, in part, “[i]f the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed … contract, conveyance, or disposition during lifetime or to take effect upon death … if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was.”  Relying on the Court’s decision, it was determined that the marriage void ab initio, due to the decedent’s incompetency to enter into the marriage contract.[50]Conclusion Together, Campbell, Birk, and Kaminester represent the confluence of both very old and very new issues affecting the Courts.  On one hand, they deal with newly identified forms of elder abuse that neither the Court, nor the legislature, had directly contemplated before.  On the other hand, they show the creativity in equity with which the Court will employ to remedy such issues; for example by employing very old equitable principles to solve such new problems.[1] 2010 WL 969843, 1 (N.Y.A.D. 2 Dept. 2009).[2] EPTL §5-1.1-A.[3] EPTL 5-1.2 states: (a) A husband or wife is a surviving spouse within the meaning, and for the purposes of 4-1.1, 5-1.1, 5-1.1-A, 5-1.3, 5-3.1 and 5-4.4, unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that: (1) A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage or dissolving such marriage on the ground of absence, recognized as valid under the law of this state, was in effect when the deceased spouse died.  (2) The marriage was void as incestuous under section five of the domestic relations law, bigamous under section six thereof, or a prohibited remarriage under section eight thereof.  (3) The spouse had procured outside of this state a final decree or judgment of divorce from the deceased spouse, of annulment or declaring the nullity of the marriage with the deceased spouse or dissolving such marriage on the ground of absence, not recognized as valid under the law of this state.  (4) A final decree or judgment of separation, recognized as valid under the law of this state, was rendered against the spouse, and such decree or judgment was in effect when the deceased spouse died.  (5) The spouse abandoned the deceased spouse, and such abandonment continued until the time of death.  (6) A spouse who, having the duty to support the other spouse, failed or refused to provide for such spouse though he or she had the means or ability to do so, unless such marital duty was resumed and continued until the death of the spouse having the need of support.[4] The Campbell v. Thomas court stated that “[t]he equitable doctrine pursuant to which we find that Nidia (the decedent’s caretaker) has forfeited her right to election does not displace legislative authority, but complements it.  Our decision does not reflect an effort to avoid a result intended by the Legislature.  Rather … it is clear to us that the Legislature did not contemplate the circumstances presented by this case when it enacted EPTL 5-1.2….  We are confident that the Legislature did not intend the statute to provide refuge for a person seeking to profit by means of a nonconsensual marriage.”  Campbell, at 5.[5] 2010 WL 969843.[6] 2010 WL 969843, at 1.[7] Id.[8] Id.[9] Id.[10] Id.[11] Id.[12] Id. at 4.[13] Id.[14] Id.[15] Id.[16] Id. at 8, see also EPTL 5-1.2.[17] Id., see also EPTL 5-1.2.[18] EPTL 5-1.2.[19] Id. at 8.[20] Id.[21] Id..[22] 115 N.Y. 506 (1889).[23] Id. at 509.[24] Id. at 11.[25] Id. at 10.[26] 2010 WL 979238 (N.Y.A.D. 2 Dept. 2009).[27] Id. at 1.[28] Id. [29] Id.[30] Id.[31] Id. at 1.[32] Id. at 2.[33] 2010 WL 969843 (N.Y.A.D. 2 Dept. 2009).[34] Birk, at 3.[35] Id.[36] Id. at 2.[37] Id.[38] Id.[39] Id. at 885 citing Baldwin v. City of New York, 43 A.D. 3d 841 (2d Dep’t 2007).[40] 26 Misc.3d 227 (Surr. Ct. N.Y. 2009).[41] Id. at 228.[42] Id. at 230.[43] Id.[44] Id. at 227.[45] Id. at 228.[46] Id.[47] Id. at 233.[48] Id. at 228.[49](d) If the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, or delegation under section 5-1501, 5-1505, or 5-1506 of the general obligations law or section two thousand nine hundred sixty-five of the public health law, or section two thousand nine hundred eighty-one of the public health law notwithstanding section two thousand nine hundred ninety-two of the public health law, or any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated or if the court determines that there has been a breach of fiduciary duty by the previously appointed agent.  In such event, the court shall require that the agent account to the guardian.  The court shall not, however, invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.[50] Kaminester, at 236.

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