Courts refuse to allow caregivers who married their incapacitated clients to get an elective share of the clients’ estates
As the American demographic continues its shift toward a larger elderly population, the problems with caregivers continue to increase. In the past, these problems typically involved power of attorney abuses. The courts have been clogged with such cases. But a recent article by Jaclene D’Agostino for the New York Trusts & Estates Litigation Blog caught our eye regarding two new cases out of New York that take matters to a new level. In these cases, caregivers tried to take advantage of the people they were hired to care for by marrying them to get an elective share of their estates.
In re Berk1 involved Irving Berk, an extremely successful businessman who founded the Berk Trade and Business School. In 1982, Irving executed a will naming his two sons, Joel and Harvey, as executors of his estate and leaving that estate to his sons and four of his grandchildren. Over time, Irving’s health deteriorated to the point that he was in a wheelchair, suffered from memory loss and often became confused.
In 1997, Judy Wang, then 40 years old, who had immigrated to the United States from China the year before, was hired as Irving’s live-in caregiver. Irving was 91 at the time and became completely dependent on Judy who was constantly with him. According to one of Irving’s associates who was often with him and Judy, Judy would shove Irving and scream at him, causing him to become tearful. Irving also told this associate that he was afraid of Judy as she would hit him, scratch his face and scream at him.
In April of 2005, a physician diagnosed Irving, whose mental faculties had been in steady decline for years, with dementia and stated that he was incapable of entering into a binding contract or managing his affairs. Two months later, Irving and Judy were married. One of Irving’s associates who saw him on his wedding day said that though Irving was wearing a suit and tie, he didn’t appear lucid or aware of his circumstances. Irving and Judy never told family, friends or associates about their wedding, and witnesses stated that they didn’t wear wedding bands or display any affection for each other.
Irving died on June 16, 2006. The day before, while riding with Joel and Harvey to the funeral home (presumably to finalize arrangements), Judy told them that she and Irving were married. Irving’s estate was valued in excess of $5 million. In December 2006, after Irving’s will was filed for probate, Judy petitioned the Surrogate’s court to determine the validity of her right to an elective share. Joel and Harvey counterclaimed. Judy moved for summary judgment which the Surrogate’s court granted, holding that no issue of fact existed as to whether Judy was the surviving spouse and entitled to an elective share under New York law (EPTL Section 5-1.2). Joel and Harvey appealed. In overturning the Surrogate’s court ruling, the appeals court relied on its simultaneous decision in Campbell v. Thomas.2
Campbell involved the story of Howard Nolan who, in early 2000, was diagnosed with terminal prostate cancer and severe dementia. In February 2001, Nancy Thomas, Howard’s daughter and primary caretaker, went on a vacation and left Howard, then 72 years old, in the care of Nidia Colon, then 58 years old. Nancy and two of Howard’s other children, Christopher and Keith later learned that Nidia married Howard during Nancy’s vacation and subsequently transferred his assets into her name. Howard died in August 2001. That following November, Christopher, Nancy and Keith brought an action against Nidia seeking a judgment declaring her marriage to Howard void and preventing her from getting Howard’s assets. Their complaint contained allegations of lack of capacity, undue influence, conversion and fraud. Cross-motions for summary judgment followed.
Meanwhile, also in November 2001, Christopher filed a petition for probate in the Surrogate’s court seeking admission of Howard’s will dated March 24, 1976. That will stated that, if Howard’s wife predeceased him, his estate was to be divided equally among his children. Nidia filed a right of election which Christopher challenged. The Surrogate’s court stayed the proceedings pending the outcome of the other action.
According to Nancy, during the last three years of Howard’s life, he was forgetful, confused, paranoid and prone to temper outbursts. When she confronted Howard about the marriage in March 2001, he adamantly denied that he was married. Nancy also asserted that Howard kept his will in a safe in his home but that, when he died, Nidia claimed that she was unable to locate it. The will was later produced by Nidia’s attorney.
Nidia asserted that she had met Howard in 1975, after Howard’s first wife died, when Howard was a school principal and Nidia was a school safety officer. She claimed that she had a 25-year relationship with Howard during which he asked her four times to marry. Nidia claimed that she accepted that last offer knowing that Howard’s children would oppose it. She also alleged that, while Howard did have moments of forgetfulness, he seemed to have the requisite mental capacity to enter into marriage vows. Nidia admitted that her relationship with Howard was not exclusive and he dated other women. Christopher’s affidavit stated that Howard jointly owned property with one other woman.
The pastor who officiated at the wedding and the two witnesses all averred that Howard knew he was marrying Nidia Colon; however, the pastor later acknowledged that he wouldn’t have performed the ceremony had he known of Howard’s medical condition.
The evidence also showed that Nidia had secretly made herself the sole beneficiary of Howard’s retirement account, then attempted to cover up this fact by falsely stating in two affidavits that Howard made her the sole beneficiary without her knowledge (she later admitted that she had in fact filled out the change-of-beneficiary form). Before she did this, Nidia had been a beneficiary of this retirement account along with Christopher, Keith, Nancy, and Nancy’s son, Peter Thomas.
The lower court denied the cross-summary judgment motions, holding that whether Howard possessed the mental capacity to marry Nidia presented a triable issue of fact. The appeals court reversed and remanded. The lower court then entered summary judgment in favor of Howard’s children, declaring the marriage invalid and ordered that all of the assets at issue be distributed to Howard’s estate and then to his children. Nidia appealed, arguing that, under the applicable statutes, she was considered a surviving spouse entitled to an elective share of the estate even if the marriage is voided.
The appeals court reviewed the applicable statute regarding elective shares that provides for an elective share unless a final decree or judgment of divorce, annulment or declaring the marriage to be a nullity was in effect when the decedent died (EPTL Section 5-1.1-A). The court stated that, because the marriage wasn’t declared a nullity until after Howard’s death, Nidia did technically have a right to an elective share of Howard’s estate. But the court didn’t stop there and turned to the equitable principle under New York precedent that a statute’s literal terms shouldn’t be rigidly applied if doing so protects fraudulent conduct.
The court determined that Nidia knew about Howard’s dementia and terminal diagnosis and waited for Nancy to leave town, married Howard and effectuated the transfer of assets into her name as well as making herself the sole beneficiary on Howard’s retirement account (the court also noted that she later attempted to cover up this fact in two false affidavits). The court then concluded that Nidia shouldn’t be permitted to benefit from her overreaching and unduly influencing conduct by receiving an elective share. She was permitted to receive that portion of the retirement fund originally designated for her benefit, as that share wasn’t a product of her wrongdoing.
The court concluded with a discussion of the state’s public policy interest in protecting vulnerable, incapacitated individuals – an interest that it posited the legislature didn’t have in mind when it enacted the elective share statute (designed, as our readers know, to prevent one from disinheriting his spouse). To the contrary, the court opined that the legislature could never have intended to “provide refuge for a person seeking to profit by means of a nonconsensual marriage.”
Although the courts in these cases didn’t allow the caregivers to benefit from their wrongdoing, these cases reveal a serious problem with caregiver abuse of clients that may require a legislative response.
1. In re Berk, 2010 N.Y. Slip Op. 02139 (Supreme Court, March 16, 2010).
2. Campbell v. Thomas, 2010 N.Y. Slip Op. 02082 (Supreme Court, March 16, 2010).