This issue arises in cases involving minor children as well as adult children. Sadly, prior to September 11, 2001, most cases involved ordinary negligence, medical malpractice and wrongful death circumstances. As a result of the deaths at the World Trade Center, more cases were reported involving the deaths of adult children who died at work. Most cases involve decedent’s who die intestate. However, a recent case deserving some attention is In the Matter of Martirano (2018 NYSJ LEXIS 4306, Sur Ct, Ulster Co, April 12, 2018) which involved the death of an adult child with a will.
The “child” in the case would have been 52 years old at the time of the Court’s decision. The Decedent died quite young, at age 48 and left an estate valued at about $1,000,000. His will was witnessed by the will’s primary beneficiaries. The Court found their bequests to be invalid under EPTL 3-3.2(a)(2). Under EPTL 3-3.2(a)(2), a disposition made in a will is void where the will cannot be proved without the testimony of the witness to whom a beneficial disposition is made.
Since the disposition made in the will was void, the estate passed by intestacy. Where the property of a decedent is not disposed of by a will, the property will be distributed pursuant to EPTL § 4-1.1. Under EPTL § 4-1.1(a)(4), if a decedent is survived by one or both parents, and had no spouse or children, the estate goes to the surviving parents. This set up the scenario that the decedent’s mother, Linda, was his sole distributee and stood to inherit everything.
When he learned of this outcome, the decedent’s older brother, Michael, asserted that their mother abandoned her children and therefore was barred from inheriting due to parental disqualification. His argument was based upon an application of EPTL 4-1.4(a)(1), which imposes an equitable penalty on a parent found to have forsaken his or her parental obligations.
Michael petitioned for declaratory relief. He offered Catholic Welfare Bureau records covering the decedents years in foster care. They stated that the decedent was abandoned by his mother at a bus terminal, that she found it impossible to care for him, and that she was a depressive person who took off with another man during her husband’s imprisonment.
The Court’s decision follows the life of this fractured and tattered family from the 1960s, when a child was born in “disgrace” to Linda at age 15, and she married the child’s father who was in and out of jail. She could not afford rent and they lived on welfare and with friends. When Linda left the children with relatives, they refused to return them to her. She did not go to court or seek the police for their assistance in the return of her children.
Years went by with sporadic telephone contact until the children were found alone in a department store. They were placed in the custody of Catholic Charities at an orphanage and became wards of the court. Linda sought their return and was denied. Ultimately, she cleaned up her act and was given custody of some of the children but not the decedent.
In this case, the Court did not consider all of the very detailed factual information on the motion because the Court found the evidence to be hearsay. Hearsay evidence may be considered in opposition to a motion for summary judgment, but only where it is shown that the defect is curable at trial. As decedent’s brother did not offer any excuse as to why the materials were not in admissible form or how he would produce the materials in admissible form at trial or otherwise offer alternative proof, the evidence was not considered. He was stuck, as he candidly admitted that he had no memory of the events. In the end the only person with personal knowledge was decedent’s mother.
The Court’s 16-page decision is very detailed and very fact specific and despite many facts against her, the Court found that Linda did not abandon her son and she did not fail to support him. The decision is a must read for a practitioner faced with either prosecuting or defending claims of abandonment or failure to support.
Sadly, there are many cases where parents return to their deceased children’s lives in connection with the potential rewards associated with wrongful death actions or lucrative estates. In many cases the parents do not prevail in their efforts to share. Matter of Martirano is different and therefore, instructive. It is also requires consideration in connection with the difficulties of proof in these cases, particularly, adult child cases.
We will have to follow this decision if it makes its way to the appellate division.