In re the Estate of von Knapitsch

296 A.D.2d 144, 746 N.Y.S.2d 694, 2002 N.Y. App. Div. LEXIS 7952
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 15, 2002
StatusPublished
Cited by6 cases

This text of 296 A.D.2d 144 (In re the Estate of von Knapitsch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of von Knapitsch, 296 A.D.2d 144, 746 N.Y.S.2d 694, 2002 N.Y. App. Div. LEXIS 7952 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Sullivan, J.

The decedent, Elisabeth von Knapitsch, died on January 15, 2000, at the age of 91, a resident of 470 Park Avenue, New York City, with an estate valued at approximately $15,000,000. Her husband predeceased her in 1980; there were no children of the marriage. The identity of her distributees is still in dispute. The closest known surviving relatives are first cousins, Six of whom are known. Two reside in the United States (California and Missouri) and four outside, in Canada, England and Holland.

On or about March 17, 2000, Warren Forsythe and Anne Hilde Huston, the executors and petitioners herein, offered for probate an instrument, dated July 17, 1997, drafted by Mr. Forsythe, an attorney. The will made multiple preresiduary bequests for the benefit of friends, a relative on the decedent’s predeceased husband’s side of the family and a named charity, and devised and bequeathed the residue of her estate to Francis X. Morrissey, Jr., an attorney and friend of the decedent and her deceased husband since the early 1970s, who also received substantial preresiduary bequests. Subsequent to the filing of this instrument, six prior wills of the decedent, dated March 26,1990, May 31,1990, April 7,1992, January 15,1993, June 29, 1993 and March 13, 1996, respectively, were also filed with the court. Neither the subject will nor any of the prior wills mention the decedent’s cousins. In fact, none of the six other prior testamentary instruments executed during the period 1977 through 1988 provide for the first cousins.

Instead, beginning with the first of these instruments, executed on May 26, 1977, through the date of the subject instrument, 11 of the decedent’s 13 American wills1 name Morrissey [146]*146as either an executor, trustee or beneficiary of her estate.2 Notably, in the will dated December 24, 1980 and, then again, in the five wills executed between 1992 and 1997, Morrissey received 100% of the decedent’s residuary estate, thus, according to the Public Administrator, establishing a pattern where Morrissey takes the residuary estate whenever Forsythe drafts the will.

The initial petition for probate of the subject will listed as the decedent’s only distributee a maternal first cousin, Kurt Simon, a resident of Los Angeles, California, who initially executed a waiver of citation and consent to probate, but later, on May 26, 2001, appeared by counsel. Subsequent to its filing, the initial petition has been amended three times to reflect the discovery of previously unknown additional cousins. With the filing of each amended petition, supplemental citation was issued; a second distributee, Adelheid Schweitzer, a paternal first cousin of the decedent, filed a waiver of citation. The other distributees defaulted.

Certain beneficiaries of substantial bequests made under prior wills of the decedent, to wit, members of the von Knapitsch family, The Animal Medical Center and the estate of Marianne Ware, a former employee of the decedent, who will be adversely affected by probate of the subject will, have filed objections. The Public Administrator of New York County, on behalf of “unknown distributees,” also filed objections. The objections assert that on the day of the will’s execution, July 17, 1997, the decedent lacked testamentary capacity, that the instrument was not duly executed and that it was procured by the undue influence and fraud of Morrissey and others acting in concert with him.

According to Morrissey and petitioners, all of the decedent’s surviving heirs have been located and, thus, with the closing of the class of “unknown distributees,” the Public Administrator’s interest in the matter has terminated and her objections have become moot as she no longer represents persons with a pecuniary interest. The basis for this assertion is an affidavit of a genealogist who has investigated the decedent’s family tree and states that decedent was survived solely by six distributees, the first cousins previously mentioned. The Public Administrator argues that the identity of the decedent’s distributees remains unknown, citing “gaping holes” in the [147]*147genealogist’s affidavit. The status, for instance, of a sister, Hildegarde, and her daughter, whose name is not even known, as well as that of various aunts and uncles and their issue, has not been determined. The genealogist stated that one of the decedent’s cousins, Klaus Simon, had died between 1917 and 2000, an 83-year period, despite the fact that Klaus’s sister, Lily, still alive and living in Canada and apparently never contacted, could likely have clarified the situation. In addition, the genealogist concluded that one of the decedent’s cousins died “before 2000,” conveniently, as the Public Administrator argues, before the decedent’s death in January 2000.

Arguing that there are no “unknown distributees” and that the six distributees identified by the genealogist either waived citation or defaulted, Morrissey moved to strike the Public Administrator’s objections to probate on the ground she lacked standing pursuant to the provisions of SCPA 1410. Morrissey further argued that the Public Administrator’s standing could not be based on any purported right to serve as fiduciary, inasmuch as two of the decedent’s distributees were United States residents, who, in the event that all 15 of the decedent’s wills were denied probate, are eligible to serve as administrators. Petitioners joined in the application. The Public Administrator and The Animal Medical Center opposed. On October 30, 2001, after hearing oral argument, the Surrogate denied the motion from the bench, finding that the Public Administrator represented parties with a financial interest in the outcome of the proceeding. The Surrogate noted that the matter should be closely examined because it involves “a sole residuary beneficiary who is a lawyer in a confidential relationship to the decedent, who was the person, not the decedent, who was in contact with the draftsman.” Thereafter, a memorandum decision, which together with the transcript of the October 30, 2001 proceedings constituted the order of the court, was filed. Petitioners and Morrissey appeal from that order. We affirm.

The Public Administrator’s standing to file objections in a probate proceeding is established by the clear and unambiguous language of SCPA 1123, enacted in 1966, which, in subdivision (2) (i) (2), provides that the Public Administrator is authorized to receive process “as a necessary party” in “[e]very proceeding for the appointment of an administrator or for the probate of a will where it does not appear that the persons applying or named in the petition are all the distributees of the decedent or where it appears that such persons are related to [148]*148the decedent in the fourth degree of consanguinity [i.e., first cousins] or are more remotely related.” Thus, the statute makes the Public Administrator a necessary party in the proceedings enumerated therein, including whenever the distributees are first cousins (or more remotely related), and directs that process issue to the Public Administrator in every such proceeding.

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Bluebook (online)
296 A.D.2d 144, 746 N.Y.S.2d 694, 2002 N.Y. App. Div. LEXIS 7952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-von-knapitsch-nyappdiv-2002.