In the Matter of the Estate of GARY L. STROUT SR., Deceased. CARRIE STROUT KANE, as Administrator of the Estate of GARY L. STROUT SR., Respondent; SANDRA STROUT, Appellant.
Calendar Date: September 7, 2017
Deborah Wolf Miller, Ithaca, for appellant.
Costello, Cooney & Fearon, PLLC, Syracuse (Nicole
Marlow-Jones of counsel), for respondent.
Before: Peters, P.J., Egan Jr., Devine, Mulvey and Pritzker,
MEMORANDUM AND ORDER
from an order of the Surrogate's Court of Cortland County
(Campbell, S.), entered April 15, 2015, which granted
petitioner's application, in a proceeding pursuant to
SCPA article 14, to determine that respondent waived the
right of election.
Strout Sr. (hereinafter decedent) died in May 2012, leaving a
last will and testament, dated December 17, 2008, that left a
vehicle and personal property to respondent, his wife of over
20 years, devised his real property in equal shares to his
two children and left the remainder of his estate to his son.
On the same date, both decedent and respondent executed
mutual waivers of the right to spousal election. Nonetheless,
after decedent's will was offered for probate, respondent
filed a notice of election. Thereafter, petitioner, the
administrator of decedent's estate, commenced this
proceeding seeking a determination that respondent was not
entitled to an elective share of the estate based upon her
aforementioned waiver. A hearing as to the validity of
respondent's waiver was held, after which Surrogate's
Court determined that respondent had validly waived her
spousal election rights. Respondent now appeals.
effective 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 Bordell, 150 A.D.3d 1446, 1447 ;
Matter of Menahem, 63 A.D.3d 839, 839-840 ).
While both parties agree that respondent signed the written
waiver in an attorney's office and that her signature was
properly acknowledged by a notary public, respondent
initially claims that the waiver is unenforceable because it
references EPTL 5-1.1, which only applies to a person dying
prior to September 1, 1992. The incorrect statutory reference
does not, however, invalidate the waiver as "[t]here 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"
(Matter of Bordell, 150 A.D.3d at 1448). Further,
there was no evidence that "[respondent] was aware of
the distinction between EPTL 5-1.1 and EPTL 5-1.1-A"
such that reference to the correct provision would have
impacted her decision to sign the waiver (id.). A
plain reading of the waiver reveals that respondent 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 962, 962 ).
also contends that Surrogate's Court erred in finding
that she, rather than petitioner, bore the burden of
establishing that respondent's waiver was free from
unfair advantage, fraud, deception and duress given the
fiduciary relationship between decedent and respondent.
Respondent's contention is based upon case law pertaining
to prenuptial agreements, which provides that "whichever
spouse contests a prenuptial agreement bears the burden to
establish a fact-based, particularized inequality before a
proponent of a prenuptial agreement suffers the shift in
burden to disprove fraud or overreaching" (Matter of
Greiff, 92 N.Y.2d 341, 346 ; see Pulver v
Pulver, 40 A.D.3d 1315, 1317 ). Absent an abuse of
discretion, this Court will uphold a determination of
Surrogate's Court as to the validity of such a waiver
(see Matter of Malone, 46 A.D.3d 975, 978 ).
hearing, respondent testified that she was the victim of
verbal and severe physical abuse at the hands of decedent,
including sustaining multiple broken noses and being run over
with a car. However, respondent conceded that there was no
corroborative evidence of the alleged violence, as she never
called the police, sought medical services or told anyone
about the abuse. Respondent also detailed a long history of
decedent making major decisions for her, including the
decision for her to file for bankruptcy to discharge her
credit card debt and to sign the subject waiver. David Ames,
the attorney who drafted both decedent's will and the
waiver, testified that he explained the waiver and its effect
to respondent and suggested that she consult her own counsel
before signing. Respondent's testimony contradicts the
testimony of Ames, the latter of which Surrogate's Court
appears to have found credible. As such, Surrogate's
Court did not find respondent's claims to be consistent
with the proof, and the burden was not shifted because
respondent failed to demonstrate that undue or unfair
advantage was "probable" (Matter of
Greiff, 92 N.Y.2d at 343 [internal quotation marks and
citation omitted]). Although respondent further contends that
there was not full disclosure as to the value of the estate
and that she did not have legal representation, these factors
do not - individually or collectively - vitiate the waiver
(see Matter of Bordell, 150 A.D.3d at 1448;
Matter of Abady, 76 A.D.3d 525, 526 ). Thus,
"[a]ccording due deference to the credibility
determinations of Surrogate's Court" (Matter of
Hudson LL. [Meredith LL.-Matthew MM.], 152 A.D.3d 906,
909 ; see Matter of Tenzer, 144 A.D.3d 1044,
1045-1046 ), we find that it did not abuse its
discretion in upholding the subject waiver. We have
considered respondent's remaining contentions and find
them lacking in merit.
Peters, P.J., Egan Jr., Devine and ...