In the Matter of MAURICE J. BORDELL, Deceased. MICHAEL BORDELL, as Executor of the Estate of MAURICE J. BORDELL, Deceased, Respondent; JENNIFER M. BASIC, as Guardian ad Litem of DENISE H. BORDELL, Appellant, and M. KATHLEEN LYNN, as Guardian ad Litem of KALEB STEPHENSON et al., Respondent, et al., Respondents.
Calendar Date: March 27, 2017
& J.A. Cirando, Syracuse (John A. Cirando of counsel),
G. Cushman, Norwich, for Michael Bordell, respondent.
Kathleen Lynn, Fayetteville, respondent pro se.
Before: McCarthy, J.P., Garry, Egan Jr., Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Surrogate's Court of Madison County
(McDermott, S.), entered September 2, 2015, which, in a
proceeding pursuant to SCPA article 14, among other things,
denied respondent Jennifer M. Basic's motion for summary
judgment dismissing the petition.
H. Bordell (hereinafter the wife) had been married to Maurice
J. Bordell (hereinafter decedent) for over 40 years at the
time of his death on January 11, 2014. They lived separately
for much of that time and had no children together. The wife
is decedent's sole distributee. Following his death,
Surrogate's Court admitted decedent's will to probate
and issued letters testamentary. The will left the bulk of
decedent's property to the Maurice J. Bordell Revocable
Trust. Decedent's paramour and her three minor children
are the trust's primary beneficiaries. Surrogate's
Court appointed respondent M. Kathleen Lynn as the guardian
ad litem for the minor children and respondent Jennifer M.
Basic as the guardian ad litem for the wife . Basic filed
a notice of election on the wife's behalf seeking her
elective share of decedent's estate . Petitioner, as
executor of decedent's estate, then commenced this
proceeding to determine the validity of the wife's notice
of election (see SCPA 1421). Petitioner claims that
an instrument, signed by the wife on May 31, 2012,
constitutes a waiver of any and all of the wife's rights
in decedent's estate. Prior to conducting discovery,
Basic moved for summary judgment requesting that the waiver
be deemed invalid and the wife's right of election valid.
Lynn opposed Basic's motion and cross-moved for summary
judgment seeking to declare the wife's election to be
invalid. Petitioner also opposed Basic's motion.
Surrogate's Court denied Basic's motion, but did not
rule on Lynn's motion . Basic appeals.
affirm. A moving party is entitled to summary judgment where
there are no triable issues of fact and the movant makes a
prima facie showing that it is entitled to a favorable
determination as a matter of law (see CPLR 3212 [b];
William J. Jenack Estate Appraisers & Auctioneers,
Inc. v Rabizadeh, 22 N.Y.3d 470, 475 ; Alvarez
v Prospect Hosp., 68 N.Y.2d 320, 324 ; Andre v
Pomeroy, 35 N.Y.2d 361, 364 ). "Only when the
movant satisfies its obligation does the burden shift to the
nonmovant to present evidence demonstrating the existence of
a triable issue of fact" (Lacasse v Sorbello,
121 A.D.3d 1241, 1241-1242  [citations omitted]). We
find that Basic did not establish that the waiver was invalid
as a matter of law.
effective, a waiver of a spouse's right to elect against
another's estate "must be in writing and subscribed
by the maker thereof, and acknowledged or proved in the
manner required by the laws of this state for the recording
of a conveyance of real property" (EPTL 5-1.1-A [e] ;
see Matter of Menahem, 63 A.D.3d 839, 839-840
; Matter of Seviroli, 44 A.D.3d 962, 962
). It is undisputed that the wife signed the waiver in
her attorney's office and that her signature was properly
acknowledged by the attorney's assistant, a notary
public. "[T]he certificate of a notary public, over his
[or her] signature, shall be received as presumptive evidence
of the facts contained in such certificate" (Executive
Law § 137). The waiver contains a certificate in the
form of an acknowledgment and the notary signed the
acknowledgment and included her stamp, which contained all
the required information regarding the notary's
qualifications (see Executive Law § 137).
Basic contends that the waiver is invalid under EPTL 5-1.1-A
because the written instrument that the wife signed referred
to EPTL 5-1.1, which only applies to a person dying prior to
September 1, 1992. The fact that the waiver refers to the
wrong section of the Estates, Powers and Trusts Law does not
affect its validity. There is nothing in EPTL 5-1.1-A (e) (2)
that requires any particular form, wording or reference to a
particular provision of the statute in order to make the
waiver effective. There is no basis to conclude that the wife
was aware of the distinction between EPTL 5-1.1 and EPTL
5-1.1-A. We agree with Surrogate's Court that it would be
illogical to conclude that she intended to waive rights that
did not exist. A fair reading of the waiver leads us to the
conclusion that the wife intended to renounce any interest in
decedent's estate, and that there was "substantial
compliance with the statutory requisites of EPTL 5-1.1-A (e)
(2)" (Matter of Menahem, 63 A.D.3d at 840;
see Matter of Seviroli, 44 A.D.3d at 962).
Basic asserts that the wife's purported waiver is invalid
because it contained a false statement regarding the
wife's consultation with her attorney prior to executing
the waiver, and that, prior to signing the waiver, she was
not provided with any information regarding the nature or
extent of decedent's assets in order to make an informed
decision. We find these contentions insufficient to
invalidate the waiver as a matter of law, as there is no
requirement that the waiver be executed upon the advice of
counsel or that a spouse be furnished with financial
information. "[A] failure to disclose does not, standing
alone, constitute fraud or overreaching sufficient to
vitiate" the waiver (Hoffman v Hoffman, 100
A.D.2d 704, 705 ). Even if the wife did not review the
waiver with her attorney or seek out information regarding
decedent's assets, "this dereliction may have caused
[her] to be ignorant of the precise terms of the waiver,
[but] the fact remains that, absent fraud or other
misconduct, parties are bound by their signatures"
(Matter of Schuellain, 269 A.D.2d 864, 865 ;
see Matter of Garbade, 221 A.D.2d 844, 846 ,
lv denied 88 N.Y.2d 803');">88 N.Y.2d 803 ; Pommer v Trustco
Bank, 183 A.D.2d 976, 978 , lv dismissed and
denied 81 N.Y.2d 758');">81 N.Y.2d 758 ). As Basic has presented no
evidence to overcome the presumption that the waiver was
properly executed and has not raised a contention that would
invalidate the waiver as a matter of law, Surrogate's
Court properly denied Basic's motion for summary
judgment. In light of our decision, we need not address the
parties' remaining contentions.
McCarthy, J.P., Garry, Egan Jr. and Rose, JJ., concur.
that the order is affirmed, ...