DECISION AND ORDER Before the court is the motion in limine of Terri Kevelson nee Bienfeld (“Kevelson”) to preclude the admission of a pre-nuptial agreement dated March 6, 1992 (the “Agreement”) between Stephen Kevelson a/k/a Stephen L. Kevelson (the “decedent”) and Kevelson prior to their marriage in a hearing concerning its validity. Relevant Background Harry Caton (proponent) filed a petition to probate a document dated May 8, 2013 (the instrument) purporting to be the last will and testament of the decedent. Kevelson, the decedent’s surviving spouse, filed objections to the probate petition. Proponent produced a copy of the Agreement, pursuant to which the decedent and Kevelson waived i) the right to elect against the other’s Will, ii) the right to take their intestate share of the other’s estate, and iii) the right to serve as a fiduciary in the other’s estate (see, Article IV, pgs. 6-7). Proponent argues that by virtue of the Agreement, Kevelson has no standing to contest the instrument. Kevelson argued, inter alia, that the decedent had revoked the Agreement, and therefore she has standing to file objections. The court scheduled a hearing to determine the validity of the Agreement. On October 31, 2022, the day of the hearing, proponent produced what purports to be an original Agreement, rather than the copy which had been previously produced. Kevelson made a motion in limine objecting to the admissibility of the Agreement generally, and argues that the Agreement was revoked, and therefore, unenforceable. In turn, the proponent argues that the Agreement is both valid and admissible. The court permitted the parties to file memoranda of law in support of their respective positions. Kevelson proffers several arguments against the validity and admissibility of the Agreement. Kevelson avers, inter alia, that the Agreement was rescinded due to the decedent’s failure to perform his required obligations. Kevelson also asserts that the Agreement was revoked and destroyed, and that a writing to this effect is not a requirement. Kevelson argues that a pretrial conference order dated July 8, 2021, precludes the admissibility of the Agreement, as it was not timely produced by the proponent. Further., Kevelson argues that the Agreement is irrelevant, it cannot be authenticated, it is barred by waiver and laches, it is incomplete, and is in contravention of the statute of frauds and the best evidence rules. The proponent argues that there is no dispute that the parties validly executed the Agreement. There are no issues as to competency, fraud, duress, lack of legal representation. Accordingly, the proponent argues that the Agreement is presumptively valid, and its terms speak for itself. The proponent argues that the parties’ mutual waivers of an interest in the other’s estates constitute sufficient consideration. Further, the proponent argues that a purported failure to comply with one provision of the Agreement does not invalidate the Agreement as a whole. The proponent avers that Kevelson’s failure to produce a written and duly acknowledged revocation is fatal to her rescission/revocation argument. Discussion Generally, a strong public policy exists in favor of parties deciding their own interests through a prenuptial agreement. Matter of Greiff, 92 N.Y.2d 341 (1998). Indeed, there is a presumption of the validity of a prenuptial agreement if it is plainly worded and gives no indication of unconscionability. Brassey v. Brassey, 154 A.D. 293 (1st Dept. 1989). A prenuptial agreement is presumed to be valid and controlling unless the challenging party meets her burden to set it aside. Gottlieb v. Gottlieb, 138 AD3d 30, 36 (1st Dept. 2016). Accordingly, the Agreement is presumptively valid. Therefore, the threshold issue with respect to the admissibility of the Agreement is whether the document was revoked and/or rescinded. “Generally, the party attacking the validity of a prenuptial agreement has the burden of coming forward with evidence showing that it is unenforceable.” M v. M, 44 Misc. 3d 1211(A) (Sup. Ct. New York Co. 2014). Therefore, it is Kevelson’s burden to prove that the Agreement was rescinded and/or revoked. Recission, Consideration and Performance Kevelson argues that the Agreement was rescinded due to the decedent’s failure to perform his required obligations under the Agreement and that there was no consideration. Specifically, Kevelson argues that the decedent failed to fulfill “three unique obligations,” to wit, i) maintain an interest-bearing bank account, ii) maintain a life insurance policy and iii) he “rendered the Life Estate in the marital residence worthless.” Kevelson relies on Fugelsang v. Fugelsang, 131 A.D.2d 810 and Schober v. Hudson Val. Human Soc. For Prevention of Cruelty to Animals, Inc. 89 A.D.3d 715 (the former dealt with a separation agreement and the latter with a so-ordered stipulation of settlement). Rather than Fugelsang and Schober, a relevant, analogues to the matter at hand is Matter of Eisner, 15 Misc. 2d 361 (Sur. Ct., Bronx Co. [1959]). In Eisner, the decedent and his spouse entered into a prenuptial agreement each waiving his/her right to share in the other’s estate, and in which the decedent agreed to make his wife the beneficiary of his life insurance policy. The decedent failed to do so, and upon his death the wife sought to rescind the prenuptial agreement for lack of consideration. While the court held that the surviving spouse had a cause of action for breach of contract against the decedent’s estate for his failure to comply with the prenuptial’s terms, the court declined to rule that the prenuptial agreement was rescinded and stated that: To permit the petitioner to rescind the agreement for the reason advanced by her would be contrary to the established principle that a waiver to elect to take against a will which has been duly subscribed and acknowledge will not be set aside except for fraud, overreaching conduct, concealment, or duress. Eisner at 364. Similarly, in Matter of Bolder, 1998 WL 35421081 (Sur Ct., Nassau Co. [1998]), the court declined to find recission in a matter where the surviving spouse argued that the prenuptial agreement was invalid for lack of consideration. The court held, Any breach of the agreement by the decedent to gift his interest in the marital home to the spouse does not constitute a basis for rescission by her or render inoperative the provisions of that agreement in which she waived her right to elect against the will…. Indeed, the agreement is presumed to be valid in the absence of proof of fraud, concealment, or imposition. Id. Like Eisner, the court determined the surviving spouse’s remedy was to seek enforcement rather than recission. Id. Pursuant to the jurisprudence of both Eisner and Bolder, which are clearly analogous here, Kevelson’s argument of recission fails. Moreover, pursuant to the plain language of the Agreement with respect to the parties’ performance, the Agreement does not become invalid due to a failure of strict performance. Specifically, Article IX (7) of the Agreement provides: The failure of either party to insist, require or demand in any one or more instances upon the strict performance of any of the terms of this Agreement or to exercise any option or make any election herein contained or provided for shall not be construed as a waiver or relinquishment for the future of any such terms, option or election, and all of the terms and conditions of the Agreement shall continue in full force and effect. No waiver or relinquishment of any term or condition of the Agreement shall be deemed to have been made by either party unless in writing duly signed by such party with the same formality of this Agreement. Thus, the Agreement has not been rescinded, nor is it invalid due to a lack of consideration. Notably, EPTL 5-1.1-A[e][3] provides that a waiver or release of an elective share can be executed with or without consideration. Revocation It is undisputed that there was no written revocation of the Agreement. Rather, Kevelson argues that the Agreement was revoked and destroyed by the decedent pursuant to the decedent’s and Kevelson’s oral agreement to do so and by the act of tearing up the Agreement. Further, Kevelson argues that a written revocation of the Agreement is not required; however, Kevelson’s argument is contradicted by the plain language of the Agreement, which provides: No amendment, modification, or waiver of any of the terms or provisions of this Agreement shall be effective unless it shall be in writing and shall be executed with the same formality as this Agreement, and no waiver of any breach or default shall be deemed to be a waiver of any subsequent breach or default. Based on the plain language of the Agreement, any modification of the Agreement requires that it be accomplished in writing. Indeed, in the Estate of Brooks, NYLJ, Jun. 7, 2021 at p. 17, col.1, the court was not persuaded by a parties’ argument that the prenuptial’s language, which is virtually identical to the language herein, supported a theory of an oral cancelation of the agreement. Thus, even if Kevelson’s claim that she and the decedent physically destroyed the original Agreement is true, this destruction shall not serve as a basis of revocation. Accordingly, as the Agreement has not been revoked, the Proponent may seek to introduce it into evidence. Kevelson’s remaining arguments concerning the Agreement’s admissibility Kevelson advances other catch-all theories concerning the admissibility of the Agreement. Kevelson argues that it is inadmissible due to chain of custody issues and that the Agreement cannot be authenticated via non-hearsay testimony. Kevelson also argues that the original Agreement was not produced as per the Pre-Trial Order of this court, that it is irrelevant, that it is incomplete, that it would open testimony otherwise barred by the Dean Man’s Statute, that it violates the Statute of Fraud and that its admissibility is precluded by the doctrine of equitable estoppel and laches. First, the court addresses the Pre-Trial Order issued by the Hon. Harriet L. Thompson, which provided that the failure to timely exchange trial exhibits shall result in their preclusion. The Pre-Trial Order provides: Any attorney or self-represented party who fails to exchange the name of any trial witness(es), expert witness(es) or evidential trial exhibit(s) shall be precluded from offering such trial witness(es), expert witness(es) or evidential trial exhibit(s) at trial, except for good cause shown. Upon reviewing said order, the court will not preclude Proponent from offering the Agreement into evidence as at the time that the Pre-Trial Order was issued, the proponent did not have the original Agreement. As public policy dictates that matters should be decided on their merits, and as the proponent did not have the original, the court shall not preclude the offering of the original Agreement. Hyde Park Motor Co., Inc. v. Sucato, 24 A.D.3d 724 (2nd Dept. 2005). Moreover, as this court is now charged with hearing the case, it can determine what evidence may be offered and what constitutes good cause shown to permit trial exhibits pursuant to the Pre-Trial Order. Further, Kevelson should have been aware that a duplicate original existed since she executed the document. Not only were all parties aware that the Agreement was executed, but the parties were also aware that the proponent was going to offer a copy of the Agreement into evidence, subject to any evidentiary objections by Kevelson, including the best evidence rule. At this juncture, the court cannot predict whether the proponent would be successful in admitting the document pursuant to such exceptions to the best evidence rule, but ultimately, it is patently clear that the proponent was going to offer the document. Accordingly, there are no surprises here, and the court will not preclude the proponent from offering the original Agreement into evidence. Second, Kevelson argues that the testimony concerning the Agreement opens the door to the Dead Man’s Statute and that the document cannot be authenticated on this basis. However, Kevelson, in her deposition testimony, did authenticate the Agreement, and may be called upon to do so during the hearing. The Dead Man’s Statute does not preclude a party from testifying against her own interest. Matter of Barabash, 84 A.D.3d 1363 (2nd Dept. 2011). The court stated, “[t]he four-page agreement in issue was authenticated by the appellant, who identified her subscribing signature and acknowledged that she and the decedent ‘both signed our signatures.’ As noted by the Surrogate, CPLR 4519, known as the Dead Man’s Statute, did not preclude the appellant from testifying against her own interest.” Barabash at 1364. The court also considered the argument with respect to equitable estoppel. Generally, “[i]n order to prevail on the theory of equitable estoppel, the party seeking estoppel must demonstrate a lack of knowledge of the true facts; reliance upon the conduct of the party estopped; and a prejudicial change in position” (River Seafoods, Inc. v. JP Morgan Chase Bank, 19 AD3d 120, 122, [2005], lv granted 5 NY3d 715, 806 NYS2d 166 [2005], Burrowes v. Combs, 25 A.D.3d 370, 372 [1st Dept. 2006]). In this matter, there is no dispute that the Agreement was not rescinded in writing as required by the express terms of the Agreement. Indeed, it appears that Kevelson consulted with legal counsel to effectuate a written modification; however, no such written modification has been presented to the court. Accordingly, Kevelson cannot rely on equitable estoppel when she knew that the Agreement required written revocation and knew that this had not been accomplished. Having considered all remaining arguments, the court finds them unpersuasive and inapplicable to the threshold matter, to wit: whether the Agreement, which was indisputably executed by the parties, was revoked or rescinded. As Kevelson has not established that the Agreement was rescinded and/or revoked, its admissibility is not summarily precluded, and the Proponent may offer it in evidence subject to authentication. Conclusion Accordingly, for the reasons set forth above, Kevelson’s application to preclude the Agreement from being offered into evidence is denied. The parties shall appear in person on March 27, 2023, at 10:00 a.m., at the Surrogate’s Court, Kings County at 2 Johnson Street, Brooklyn, New York 11201, for the hearing regarding the admissibility of the Agreement at which time the proponent shall lay the foundation for the admission of the original signed Agreement. This constitutes the decision and order of the Court. Dated: March 8, 2023
