Decedent died on June 30, 2013 survived by his wife, Patricia1, and his daughter from a prior marriage, Debra Veley [hereafter, Debra]. His Last Will and Testament, dated December 13, 2010, left bequests of personal property to Patricia, a specific devise of real property to Debra (with a conditional life estate reserved to Patricia), and the residuary estate in its entirety to Debra. Patricia was named fiduciary of the estate, and preliminary letters were issued to her on October 31, 2014. Following extensive litigation, summary judgment was granted by this Court [Howe, J.] on October 9, 2015 admitting decedent’s Will to probate. In March, 2018, Patricia filed a petition for advice and direction. In it, she sought (a) approval of her accounting and (b) sale of decedent’s real property in order to cover administration expenses. Discovery ensued, including an SCPA 2211 examination of Patricia by Debra, after which Debra filed objections, to which Patricia replied. Summary judgment motions were then made by both parties, and this Court issued a Memorandum and Order, dated December 29, 2020, deciding some matters and setting the remaining issues down for an evidentiary hearing (see infra at pp 6-7). On consent of the parties, the unresolved issues were tried before the Chief Attorney of this court on a hear and report basis over a 3 day period in September, 2021. The parties waived the filing of a referee report and consented that I might decide the issues based upon the testimony and documentary evidence at the hearing (see SCPA 506 [c]). Following the hearing, both sides submitted memoranda of law, and Patricia also filed an additional attorney fee request to bring that claim current through the date of final submissions on the accounting issues. The matter being finally submitted, I now find and decide as follows. (A) (i) An accounting party always has the burden of proving that she has fully and accurately accounted for all the assets and expenses of the estate (see Matter of Schnare, 191 AD2d 859 [1993]; see also Matter of Pavlyak, 139 AD3d 1338 [2016] and Matter of Alles, 69 Misc 3d 1202[A], 2019 NY Slip Op 52192[U] [dec. Mar. 20, 2019] affd on opn of this Court at 187 AD3d 1601 [2020]). Where a party objects to the accounting, as here, that party bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete (see e.g. Matter of Putter, 38 AD3d 1333 [2007] and Matter of Alles, supra). If the objectant meets her burden, the accounting party must still prove, by a fair preponderance of the evidence, that her account is accurate and complete (see Matter of Jewett, 145 AD3d 1114 [2016]). (ii) Patricia’s 2018 accounting, attached to her advice and direction petition, listed decedent’s 6671 Olean Road real property as the only estate asset, with a value of $110,500.2 The accounting listed $13,259.34 in so-called “realized decreases” (see exh M, sch B) which consisted of decedent’s medical bills and other miscellaneous expenses referred to as estate costs. In additional schedules (exh M, schedules C and C-1), Patricia listed unpaid funeral expenses of $12,699.99 and showed total funeral and administration expenses of $60,192.27, of which over $40,000 was ascribed to attorney fees. That accounting has been revised more than once since its original filing, and the most recent attorney fee amounts from Patricia’s attorneys total $120,437.28 [$95,165.28 for attorney Thomas Pares [hereafter, Pares] and his predecessor attorney Ronald Bennett [hereafter, Bennett], and $25,272.00 for accounting trial counsel James Renda [hereafter, Renda], all amounts inclusive of disbursements]. Decedent’s Will, as noted, left his residence to his daughter, Debra, with a qualified life estate granted to Patricia. Patricia executed a deed to Debra dated January 3, 2018, together with a document which relinquished and assigned her life estate in the property to Debra. The deed documents were sent by Pares to Debra’s attorney, Raymond Pfeiffer [hereafter, Pfeiffer], shortly after execution. Following an exchange of emails between counsel, Pfeiffer sent Pares the following email on January 11, 2018: “Since we can’t stipulate that your client’s gift of the life estate interest to my client will not in any way affect my clients claims against your client, I will let my client know not to record the deed until after all the claims have been resolved between the parties. Talk to you soon. Ray” (emphasis in original). Thereafter, Pares requested Pfeiffer at least twice in writing in January, 2018, to return the deed and assignment to him, but Pfeiffer did not respond. This issue was raised in Patricia’s March, 2018, advice and direction petition, with this Court being requested in the petition to direct Debra’s attorney “not to file the executor’s deed”. When the petition was first before this Court with counsel in June, 2018, the accounting issues were scheduled and the deed issue was not discussed. Then, on July 25, 2018, while the parties were engaged in discovery with respect to Patricia’s accounting, Pfeiffer had the deed and assignment recorded, notifying Pares of that occurrence by letter dated July 27, 2018.3 At the same time as the parties were litigating in this court, they were also in Supreme Court in a lawsuit filed against Patricia by Debra involving decedent’s Summit Federal Credit Union [SFCU] account [see Veley vs. Manchester, file No.I2014-806977] on which Patricia was apparently listed as a joint owner. Two withdrawals had been made from that account by Patricia, one prior to decedent’s death in the amount of $16,000 on June 20, 2013, and the other in the amount of $12,000 on July 10, 2013. Judgment was issued in that action on October 21, 2019, with the Amended Judgment providing that the $28,000 withdrawn from the SFCU account would be applied to cover decedent’s outstanding medical bills [totaling $12,507.25] and decedent’s funeral expenses [totaling $12,699.99]. The remaining balance of that $28,000 — $2,792.76 — was to “be provided to the Erie County Surrogate’s Court in connection with the pending accounting proceeding”.4 In my December 29, 2020, decision with respect to Patricia’s accounting and the related real property issues, and insofar as relevant here, I made the following findings and determinations: 1. The account listing of $12,699.99 in unpaid funeral expenses had been determined by Supreme Court as having been paid by Patricia from decedent’s SFCU account, and that determination then being res judicata of that issue, this Court directed that the “outstanding” funeral expenses be deleted from the accounting in this court; 2. The account listing of $13,259.34 in outstanding medical bills for decedent may, or may not, have been partially paid [$12,507.25] by Patricia with $16,000.00 taken by her — also as determined by Supreme Court — from decedent’s SFCU account; and this Court directed that the medical bills issue be resolved at the accounting hearing to be held thereafter; 3. A hearing was required with respect to decedent’s M & T Bank account no. ***6998, on which Patricia was listed as a joint owner, to determine whether Patricia was a joint owner with the right of survivorship, or whether her name had been placed on the account solely for convenience (which, if so, would make the account an asset of the estate); 4. All issues concerning decedent’s Olean Road real property — including whether the deed executed by Patricia conveying all right, title and interest in it to Debra in early-2018 should be vacated and set aside and whether it should then be sold to defray estate liabilities — were, as a matter of judicial economy “in order to bring this estate to conclusion”, to be part of the accounting trial. (B) (i) I turn first to a consideration of M & T Bank account no. ***6998. Patricia’s hearing exhibit C, in evidence, is the “account card” for that account, dated June 4, 2012, and it was signed by both decedent and Patricia. The card provides, above the signature lines, that, “[b]y signing below”, the signatories “acknowledge and agree that if the account is opened in the names of two or more individuals, the account will be a Joint Account with Right of Survivorship unless it is a fiduciary or custodial account” (emphasis added). Patricia has testified5 consistently that she and decedent maintained several joint bank and/or investment accounts at various financial institutions prior to his death. She testified that she had been added as a joint account holder to decedent’s M & T account in 2012, and she has provided proof that she was named as a joint account holder on decedent’s other bank accounts prior to that. Signature cards which include “survivorship language” for two of these additional bank accounts, and a beneficiary designation form and membership application form listing Patricia as a joint member on the SFCU IRA account, were in evidence at Patricia’s SCPA 2211 accounting examination. Testimony also establishes that decedent was made a joint account owner of Patricia’s bank accounts. New York Banking Law §675 provides that: “(a) When a deposit of cash, securities, or other property has been made in…or with any banking organization…in the name of such depositor or shareholder and another person and in form to be paid or delivered to either, or the survivor of them, such deposit or shares…shall become the property of such persons as joint tenants and…shall be held for the exclusive use of the persons so named and may be paid or delivered to either during the lifetime of both or to the survivor after the death of one of them… (b) The making of such deposit or the issuance of such shares in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding to which the…surviving depositor or shareholder is a party, of the intention of both depositors or shareholders to create a joint tenancy and to vest title to such deposit or shares, and additions and accruals thereon, in such survivor. The burden of proof in refuting such prima facie evidence is upon the party or parties challenging the title of the survivor” (emphasis added). When an account has been established in accordance with the statute, and the “survivorship” language appears on the account’s signature card, a presumption arises that the parties intended to create a joint tenancy with rights of survivorship (Matter of Corcoran, 63 AD3d 93, 96-97 [2009]; Matter of Stalter, 270 AD2d 594, 595 [2000]). Moreover, as the Court said in Brumer v. Brumer, 223 App Div 186, 190 [1928]: “A bank account in the name of husband and wife, in the absence of evidence to the contrary, creates a survivorship in the wife, whether or not there has been a delivery of the bank book. The intention of the husband, when so depositing his money, is presumed to be to benefit the wife to the extent of conferring the right of survivorship upon her, and to leave him with the control and the right of disposition thereof during his life” (see also West v. McCullough, 123 App Div 846 [1908], aff’d 194 NY 518 [1909] and Matter of Rice, 281 App Div 945 [1953]). It is true that Patricia has testified that she and decedent placed both their names on their various accounts “to help each other out if we had to”. More significantly, she also testified that both their bills were paid out of M & T account no. ***6998 (see hearing exhibit #1, at pp. 26-29), which demonstrates true joint ownership, not merely “convenience”. The presumption created by Banking Law §675 can be rebutted “‘by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only’” (Matter of Richichi, 38 AD3d 558, 559 [2007] ; see Fragetti v. Fragetti, 262 AD2d 527 [1999], and Hom v. Hom, 101 AD3d 816 [2012]). “A party seeking to overcome [the] presumption[ ] may succeed by the tender of clear and convincing proof” (Matter of Farnsworth, 2018 NYLJ LEXIS 1379 [dec. Mar. 28, 2018], emphasis added). Here, I find that Debra has failed to make any credible showing that this was a convenience account only. I find that M & T Bank account no. *** 6998 was a joint bank account with rights of survivorship, and that, when decedent died, whatever balance remained in that account belonged to Patricia; and, thus, I conclude that M & T Bank account no. ***6998 is not an asset of decedent’s estate. (ii) I turn next to the issue of decedent’s account listing of funeral expenses [$12,699.99] and medical bills [$13,259.34]. Although my December 29, 2020 decision pointed out that Supreme Court had determined that the funeral expenses had been paid from the SFCU account and was no longer an issue before me, Supreme Court’s decision was reversed in its entirety by our Appellate Division on February 5, 2021. That reversal now brings the funeral bill payment back into question. And, with respect to decedent’s final medical bills, Supreme Court had found that $12,507.25 had also come from that SFCU account, essentially leaving only $752.09 in medical bills for determination by this Court. However, with Supreme Court’s judgment reversed, the entire medical bill issue also remains to be determined. In their legal submissions, counsel have indicated that the Supreme Court action has now been settled. Pfeiffer states that the agreement contemplates “splitting the SFCU account equally between [Patricia and Debra]“. Patricia’s attorney says that the terms of the settlement are generally supposed to be confidential but that, based upon Pfeiffer’s having “‘opened that door’”, “a settlement dollar amount was achieved with Veley by creating a pool of money for Veley. SFCU contributed 62.24 percent and Patricia Manchester contributed 18.75 [percent] from her SFCU account” (emphasis added). It is not disputed that Patricia withdrew a total of $28,000.00 from the SFCU account either just prior to, or just after decedent’s death. $16,000 was withdrawn for “medical expenses” from the joint SFCU account on June 20, 2013 (see hearing exhibit 16), leaving a balance in the account at that point of $171,199.06. And, on July 10, 2013, Patricia withdrew $12,000.00 from that SFCU account, leaving a balance of $159,873.41 (see hearing exhibit #11). It is likewise not disputed that she used $12,699.99 of the total amount to pay decedent’s funeral bill and at least $12,507.25 for decedent’s medical bills. As to the $16,000.00 withdrawn from the SFCU account on June 20, 2013, that occurred while decedent was still living and whatever expenses of his were paid with that $16,000.00 are not separately recoverable by Patricia. Given the nature of that SFCU account, the $16,000.00 was decedent’s money while he was alive as much as it was Patricia’s. That being so, Patricia is not entitled to reimbursement of the $16,000.00 from the estate. As to the $12,000.00 withdrawn by Patricia from the SFCU account on July 10, 2013, after decedent’s death on June 30, 2013, that amount, on the record now before me, was then solely Patricia’s money and is reimbursable to Patricia from the estate to the extent she used it to pay any of decedent’s medical or funeral bills. I find that, out of the $28,000.00 withdrawn by Patricia from the SFCU account, $25,696.27 was paid by her for decedent’s funeral [$12,699.99] and medical bills [$12,996.28].6 Because $16,000.00 of the $28,000.00 is not reimbursable to Patricia, she is entitled to recover from the estate only the sum of $9,959.33 [$25,959.33 less $16,000.00]. (iv) Turning next to the issues concerning the attorney’s fees, Debra has asserted that the amount of attorney’s fees being requested is “unreasonable.” Matter of Freeman, 34 NY2d 1 [1974] and Matter of Potts, 213 App Div 59 [1925], aff’d 241 NY 593 [1925], generally govern a Court’s review of a claim for counsel fees. In reviewing the fees requested in this case, I have, therefore, considered ” ‘the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel and the results obtained’ ” (Matter of Chase Manhattan Bank, 68 AD3d 1670, 1671 [2009], quoting Matter of Potts, 2013 App Div 59, 62 [1925], affd 241 NY 593 [1925]). Here, the record demonstrates extensive litigation in this estate which has transpired since decedent’s death on June 30, 2013. Probate of decedent’s Will, for example, was vigorously contested by Debra, and attempts to settle the matter were unsuccessful. I find that, under the circumstances, all of the legal fees charged by Bennett, Patricia’s first attorney, are fair and reasonable. Because Patricia paid Bennett from her personal funds, she is entitled to reimbursement from the estate for that $8,016.50 in administration expenses. With respect to the fees requested by accounting hearing attorney Renda, I find that the $25,272.00 is fair and reasonable under the circumstances. As noted supra, the hearing consumed three days of testimony, and there were post-hearing legal submissions and pre-hearing preparation by Renda. Patricia is entitled to have Renda’s fees paid by the estate as an administration expense. Finally, with respect to the $87,148.00 fees sought by Pares, Patricia’s estate attorney, for his representation of Patricia in this estate from April 2014 to date, Debra urges that there are numerous discrepancies and errors in Pares’ billing records and that, in certain instances, Pares’ estate billings appear to have included time spent on the Supreme Court litigation between Debra and Patricia. Pares made the point in being cross-examined at the hearing by Pfeiffer that, in his considered opinion, a significant amount of time expended in this estate was attributable, in effect, to unwarranted and unreasonable actions by Debra. And, when one looks at the contested probate aspect of this estate, for example, and the ultimate decision of this Court [HOWE, J.] to admit the Will to probate, with $37,409.00 in Patricia’s attorney fees7 in defending the validity of the Will, the point made by Pares appears to have some validity. Furthermore, I have carefully reviewed the record of Pares’ hearing testimony. I am satisfied, based upon his detailed explanations of his time and billing records, that there was no duplication or improper overlap of billing between his work for Patricia in the estate matter and the litigation he handled for her in Supreme Court. Of necessity, there was some interrelationship between what was transpiring in the two courts given the claims about payments for decedent’s medical and funeral bills, and the nature of the various joint accounts (including decedent’s SFCU account on which Patricia was named as a joint owner). I find that, taking Pares’ testimony as a whole and reviewing all his time records, and considering also that he did not charge Patricia for the services and time of his paralegal,8 his billings in the total amount of $87,148.78 for legal services (and disbursements) rendered to Patricia in this estate are fair and reasonable under all the circumstances. Thus, I find and conclude that Patricia’s attorney fees, in the sum of $120,437.28 are reasonable proper expenses of her administration of this estate. In making my finding of reasonableness, I recognize the extraordinary legal expense which has been incurred. However, Patricia was met here by her deceased husband’s daughter who, on the record presented, relentlessly litigated every aspect of every issue. Certainly, that was Debra’s choice and prerogative, but it was that approach to this estate from its inception which has driven up the legal costs to where they are today. Patricia is entitled to be reimbursed personally from the estate for the $22,377.29 of those fees which she has previously paid [$8,016.50 to Bennett, plus $14,360.79 to Pares], and the balance of the fees shall be paid to Pares and Renda directly from the estate. (v) As to the issue of executor’s commissions, that cannot be resolved at this point until all other outstanding matters (see infra) have been concluded. (C) I turn finally to the issue of decedent’s Olean Road real property. That aspect of Patricia’s petition for advice and direction, which seeks the sale of that property to cover estate expenses, was initially deferred by me until the conclusion of the accounting issues and was then made a part of the hearing issues. Although Pfeiffer recorded the deed to the Olean Road property on July 25, 2018, he had made a written commitment in January, 2018, to Pares not to do so until “after all the claims have been resolved between the parties”. Debra testified that Pfeiffer told her about that commitment “[a]t that time”. Debra also testified that she told Pfeiffer in July, 2018 to have the deed recorded “because that was my father’s wishes”, and that “I never intended giving the deed back.” Irrespective of Debra’s motivation, I find that the deed must be vacated and set aside, and the Olean Road property immediately sold with the proceeds going to the estate. The law is clear that estate property — real or personal — may be sold to pay estate administration expenses. See, e.g. 5 Warren’s Heaton on Surrogate’s Court Practice §68.06 (3) ["Without question, the real property of the decedent may be sold for the payment of funeral expenses"] and (4) ["The real property of the decedent may be sold in order to pay administration expenses"], at 68-92 to 68-93 [7th ed]. The case of 72634552 Corp v. Okon, 63 Misc 3d 1222(A) [dec. May 20, 2018] is instructive. There, a deed to decedent’s real property was conveyed post-death, but an application was made to vacate and set aside that deed. Although the facts and circumstances of Okon are different from what is before me in this case, the decision itself succinctly discusses relevant legal principles applicable here: “While it is true that title to an estate’s real property vests in beneficiaries at the moment of a testator’s death, their title is qualified and subject to the executor’s power to sell the property to satisfy the debts and obligations of the estate. Matter of Ballesteros, 20 AD3d 414, 415 (2d Dept 2005); Matter of Katz, 55 AD3d 836, 836 (2 Dept 2008). Accordingly, ‘title does not fully vest in the legatee until a fiduciary gives an assent to its release.’ Estate of Coe Kerr, Jr., NYLJ Mar. 16, 1983, at 6, col. 3 (Sur. Ct. NY County 1983); see also Estate of Edwards, NYLJ Feb. 18, 2000, at 30, col. 2 (Sur. Ct. Kings County 2000) (‘Even where a real property is specifically devised, title to the property remains in the decedent’s name and remains an estate asset available for the payment of administration expenses and taxes, until the fiduciary gives assent to its release.’)” (see also, Matter of Smith v. Samuels, 2018 NY Slip Op 32262(U), 2018 NYLJ LEXIS 3245 [dec. Sep. 10, 2018] and Kinard v. Rosenblatt, 39 Misc 3d 1215(A) [dec. April 12, 2013]). Equally pertinent is Matter of Antin, 2019 NY Misc LEXIS 1925, 2019 NY Slip Op 31079(U) [dec. Apr. 19, 2019]. There, estate assets had been distributed before the final accounting (with attorney fees) had been approved, which left “insufficient funds to pay outstanding expenses in full.” Surrogate Anderson directed, inter alia, that “each beneficiary is ordered to refund to the estate the amount by which the total distributions to such beneficiary exceeded his or her share as finally determined” in order to ensure proper payment of the estate’s outstanding expenses. Matter of Ross, 2010 NY Misc LEXIS 3086, 2010 NY Slip Op 31747(U) [dec. June 30, 2010] is also significant. In Ross, Surrogate Riordan had before him a claim that a deed executed in 2004 before decedent’s death in January 2007, but not delivered to the transferee until after decedent had died, and not recorded until still later in November, 2007, was subject to vacatur. As Surrogate Riordan pointed out: “The law presumes that a deed was delivered and accepted as of the date of its execution. However, the presumption is rebuttable and must yield to opposing evidence (Manhattan Life Ins. Co. v. Continental Ins. Cos., 33 NY2d 370, 372 [1974]; Braun v. Conrail, 158 AD2d 644 [2d Dept 1990]). The presumption of delivery of the deed ‘may be repelled by proof of attendant facts and subsequent circumstances, such as the possession and control of the property by the grantor, the declarations of the supposed grantee which are inconsistent with the transfer of the title, which, with the acts and conduct of the parties in relation to the property, are all circumstances to be considered in determining whether there has been a delivery and acceptance of the deed’ (Ten Eyck v. Whitbeck, 156 NY 341, 352 [1898])” (emphasis added). Finally, former Nassau County Surrogate Judge Radigan has pointed out in his treatise, New York Estate Administration, Turano and Radigan, that even an arms-length purchaser for value of real property from a devisee of that property specifically left to the devisee can be “faced with a potential danger: if the real property is needed to satisfy the decedent’s debts or estate administration expenses, it could be the subject of an [SCPA] Article 19 proceeding” to sell that real property well after the sale was completed ( at ch. 17, pp. 14-15 [2022 ed]). Here, I find that, considering the entire record of what took place among counsel and the parties, acceptance of the deed to Debra was made contingent by Debra on Patricia’s agreeing to a term which she, by her attorney, would not accept (see supra, p. 4). Thereafter, Debra’s attorney agreed not to record the deed until all the issues between the parties had been resolved (although he would not return the deed). Thus, there was no completed delivery and acceptance of the deed as required by law, and Pfeiffer’s subsequent recording of the deed in July, 2018 breached his commitment not to do so and was a nullity. That said, even if the recording had been fully valid, I conclude that the deed was subject to vacatur to pay the administration expenses of the estate. The petition to “reclaim” the deed was filed, process was issued to Debra, and there was an appearance before this Court on that petition with a full scheduling order set, weeks before the deed was recorded. I find that the recording of the deed is at least voidable, if it was not entirely void ab initio (based on Pfeiffer’s commitment to Pares), and I direct that a separate Order shall be prepared and submitted to me by counsel to carry out my direction now to nullify, cancel and vacate that deed in its entirety. And, finally, I direct that decedent’s Olean Road property shall be immediately listed for sale by Patricia, as fiduciary of this estate. Once sold, the net sale proceeds shall be added to an amended accounting, together with any additional administration expenses incurred,9 and the final accounting, as so amended, shall be brought back before this Court for review and approval. This decision shall constitute the Order of this Court, and to the extent otherwise directed herein, no other or further order shall be required. Dated: August 18, 2022
