Predatory Spouse Denied Statutory Share of Estate in New York Case: In the Matter of Berk
The New York case of In the Matter of Berk1 looked at whether a spouse has a right to his or her elected statutory share of a deceased spouse’s estate even if the marriage was the result of fraud, undue influence or the incapacity of one of the parties.
Background
The facts of this case resemble those of a typical “predatory marriage” scenario. In 1997, the sons of a 91 year old widower hired a caregiver to assist their father with his personal care needs. The older adult became dependent upon the caregiver and confessed to a friend that he was afraid of her as she would hit him, scratch him and scream at him. In 2005 he was diagnosed with dementia and a capacity assessment determined that he was “incapable of entering into binding contracts”. Shortly after this diagnosis the caregiver, who was 47 at the time, took the older adult to city hall and married him. The marriage remained a secret from the older adult’s family and friends until he passed away a year later. His will, which he had executed in 1982, left his multi-million dollar estate to his two sons and four grandchildren and nothing to his wife.
The caregiver/wife filed an application seeking her share of the estate under The Estate, Powers and Trust Law (“EPTL”).2 Similar to legislation in Ontario, a surviving spouse in New York can receive his or her share of an estate under a will or elect to receive a legislated share. In New York, that share is $50,000 or 1/3 of the estate, whichever is more. A surviving spouse has a right to this elective share unless one of the EPTL’s enumerated grounds of disqualification (annulment, divorce, incest, bigotry, abandonment of spouse and failure to support) is established.
The co-executors of the estate (the two sons) defended the application and counter-claimed seeking a declaration that the marriage was a ‘sham’ and that the wife was not entitled to her elected share. They argued that as the marriage was a result of undue influence, fraud, duress and/or the incapacity of the deceased, the marriage was void ab initio. In other words, the caregiver could not get her share for a marriage that was never existed. Alternatively, they argued that if it was a valid marriage the sons should receive an award of damages for her fraudulent conduct equal to her elective share.
Summary Judgment Motion
The caregiver brought a summary judgment motion arguing that as she was married to the deceased when he died, and none of the legislated grounds of disqualification could be established, she had made out her prima facie case and should be awarded her share. The co-executors argued that it was premature to grant summary judgment as there was a material issue to be decided.
The sons argued that an annulment should be granted as one of the parties (their father) was “incapable of consenting to the marriage for want of understanding”. They argued that such an annulment would void the marriage from inception, meaning their father had no spouse when he died.
Justice Diana Johnson rejected this argument as “a marriage is voidable not void if one of the parties thereto was incapable of consenting to the marriage for want of understanding, or consented to same by reason of force, duress or fraud. A voidable marriage is only void from the time the nullity is declared by a Court.”(emphasis added).3 In other words, even if an annulment was granted the marriage would only be void from the date of the court decision, not the date of the marriage, and the caregiver would still have been his spouse when he died.
Alternatively the sons also argued that the petitioner should be “equitable estopped” from taking her statutory share as she was in a fiduciary relationship with the deceased and failed to tell anyone about the marriage. The Court found that the caregiver had no legal duty to disclose the marriage.
Finally, the sons argued that the caregiver waived her right to elect under the statute. They produced a handwritten note from the caregiver which stated: “I like the people knows (sic) that this marriage is not for money. I’ll not take any money from the Berk’s family. ” The Court found that the handwritten note did not meet the requirements for a renunciation under the EPTL (must have a certificate of acknowledgment, be witnessed, dated etc.)
While the motion judge admitted that there were issues surrounding the deceased’s capacity to enter into marriage she strictly applied the law. The caregiver was married to the spouse when he died; therefore, as a matter of law, she had a right to her elected share.
Appeal
The executors appealed this decision.4 The appellate court found that summary judgment should not have been granted as a triable issue existed: did the caregiver forfeit her statutory right of election?
In opposing the petitioner’s motion for summary judgment on the petition, the decedent’s sons tendered evidence from which a trier of fact could properly determine 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 person’s intended beneficiaries.’ (Campbell v. Thomas A.D. 3d 897 N.Y.S. 2d 460) Should the trier of fact so determine, equity will intervene to prevent the petitioner from becoming unjustly enriched from her wrong doing as a court cannot allow itself to become an instrument of wrongdoing.5 [emphasis added]
The appeal court overturned the lower court’s decision, disallowed the summary judgment and reinstated the counter claims.
Conclusion
It is interesting to note the different approaches used by the two Courts in this case. At first instance the Court strictly applied the law and observed that it was not the Court’s place to “write disqualifications into the EPTL or alter which makes a voidable marriage void from the time its nullity is declared, rather than from the time of marriage.”
The appellate court invoked the use of the equitable doctrine of unjust enrichment to correct what may be a clear flaw in the legislation which would see predatory spouses benefit from their wrongdoing. By focusing on the actions of the perpetrator and using equitable principles, Courts may have more options to right the wrongs against vulnerable older adults in these situations. The appellate court also relied on a similar case, Campbell v. Thomas A.D. 3d 897 N.Y.S. 2d 460, which the appellate court simultaneously released with In the Matter of Berk. Campbell further explores the equitable principle that no one should profit from his or her own fraud or wrongdoing in the context of predatory marriages. We will review Campbell in an upcoming blog.
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1. 2008, 20 Misc.3d 691, 864 N.Y.S.2d 710.
2. §5-1.1-A.
3. Supra note 1 para. 12
4. 2010 71 A.D. 3d. 883, 897 N.Y.S.2d 475.
5. Ibid at p.3.
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Written by: Kimberly A. Whaley
Posted on: June 6, 2014
Categories: Commentary
The New York case of In the Matter of Berk1 looked at whether a spouse has a right to his or her elected statutory share of a deceased spouse’s estate even if the marriage was the result of fraud, undue influence or the incapacity of one of the parties.
Background
The facts of this case resemble those of a typical “predatory marriage” scenario. In 1997, the sons of a 91 year old widower hired a caregiver to assist their father with his personal care needs. The older adult became dependent upon the caregiver and confessed to a friend that he was afraid of her as she would hit him, scratch him and scream at him. In 2005 he was diagnosed with dementia and a capacity assessment determined that he was “incapable of entering into binding contracts”. Shortly after this diagnosis the caregiver, who was 47 at the time, took the older adult to city hall and married him. The marriage remained a secret from the older adult’s family and friends until he passed away a year later. His will, which he had executed in 1982, left his multi-million dollar estate to his two sons and four grandchildren and nothing to his wife.
The caregiver/wife filed an application seeking her share of the estate under The Estate, Powers and Trust Law (“EPTL”).2 Similar to legislation in Ontario, a surviving spouse in New York can receive his or her share of an estate under a will or elect to receive a legislated share. In New York, that share is $50,000 or 1/3 of the estate, whichever is more. A surviving spouse has a right to this elective share unless one of the EPTL’s enumerated grounds of disqualification (annulment, divorce, incest, bigotry, abandonment of spouse and failure to support) is established.
The co-executors of the estate (the two sons) defended the application and counter-claimed seeking a declaration that the marriage was a ‘sham’ and that the wife was not entitled to her elected share. They argued that as the marriage was a result of undue influence, fraud, duress and/or the incapacity of the deceased, the marriage was void ab initio. In other words, the caregiver could not get her share for a marriage that was never existed. Alternatively, they argued that if it was a valid marriage the sons should receive an award of damages for her fraudulent conduct equal to her elective share.
Summary Judgment Motion
The caregiver brought a summary judgment motion arguing that as she was married to the deceased when he died, and none of the legislated grounds of disqualification could be established, she had made out her prima facie case and should be awarded her share. The co-executors argued that it was premature to grant summary judgment as there was a material issue to be decided.
The sons argued that an annulment should be granted as one of the parties (their father) was “incapable of consenting to the marriage for want of understanding”. They argued that such an annulment would void the marriage from inception, meaning their father had no spouse when he died.
Justice Diana Johnson rejected this argument as “a marriage is voidable not void if one of the parties thereto was incapable of consenting to the marriage for want of understanding, or consented to same by reason of force, duress or fraud. A voidable marriage is only void from the time the nullity is declared by a Court.”(emphasis added).3 In other words, even if an annulment was granted the marriage would only be void from the date of the court decision, not the date of the marriage, and the caregiver would still have been his spouse when he died.
Alternatively the sons also argued that the petitioner should be “equitable estopped” from taking her statutory share as she was in a fiduciary relationship with the deceased and failed to tell anyone about the marriage. The Court found that the caregiver had no legal duty to disclose the marriage.
Finally, the sons argued that the caregiver waived her right to elect under the statute. They produced a handwritten note from the caregiver which stated: “I like the people knows (sic) that this marriage is not for money. I’ll not take any money from the Berk’s family. ” The Court found that the handwritten note did not meet the requirements for a renunciation under the EPTL (must have a certificate of acknowledgment, be witnessed, dated etc.)
While the motion judge admitted that there were issues surrounding the deceased’s capacity to enter into marriage she strictly applied the law. The caregiver was married to the spouse when he died; therefore, as a matter of law, she had a right to her elected share.
Appeal
The executors appealed this decision.4 The appellate court found that summary judgment should not have been granted as a triable issue existed: did the caregiver forfeit her statutory right of election?
In opposing the petitioner’s motion for summary judgment on the petition, the decedent’s sons tendered evidence from which a trier of fact could properly determine 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 person’s intended beneficiaries.’ (Campbell v. Thomas A.D. 3d 897 N.Y.S. 2d 460) Should the trier of fact so determine, equity will intervene to prevent the petitioner from becoming unjustly enriched from her wrong doing as a court cannot allow itself to become an instrument of wrongdoing.5 [emphasis added]
The appeal court overturned the lower court’s decision, disallowed the summary judgment and reinstated the counter claims.
Conclusion
It is interesting to note the different approaches used by the two Courts in this case. At first instance the Court strictly applied the law and observed that it was not the Court’s place to “write disqualifications into the EPTL or alter which makes a voidable marriage void from the time its nullity is declared, rather than from the time of marriage.”
The appellate court invoked the use of the equitable doctrine of unjust enrichment to correct what may be a clear flaw in the legislation which would see predatory spouses benefit from their wrongdoing. By focusing on the actions of the perpetrator and using equitable principles, Courts may have more options to right the wrongs against vulnerable older adults in these situations. The appellate court also relied on a similar case, Campbell v. Thomas A.D. 3d 897 N.Y.S. 2d 460, which the appellate court simultaneously released with In the Matter of Berk. Campbell further explores the equitable principle that no one should profit from his or her own fraud or wrongdoing in the context of predatory marriages. We will review Campbell in an upcoming blog.
—
1. 2008, 20 Misc.3d 691, 864 N.Y.S.2d 710.
2. §5-1.1-A.
3. Supra note 1 para. 12
4. 2010 71 A.D. 3d. 883, 897 N.Y.S.2d 475.
5. Ibid at p.3.
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