How Casual Texts Cost an Heir Her Inherited Property

This week we wanted to bring your attention to an interesting decision out of the Appellate Division, Fourth Department, which affirmed a Lower Court’s Order confirming the validity of a Deed that transferred title from the Executor of an Estate to a bona fide purchaser for value despite the fact that the Decedent’s Will included a specific bequest of the real property.  Both the Lower Court’s and Appellate Court’s decisions were based, in part, on several texts and emails between the parties, as well as the parties’ attorneys, acknowledging and agreeing to the terms of sale by the Executor. 
The relevant facts of, as well as a link to, the case are set forth below.

Robert E. Bardwell (“Decedent”) passed away and his Will named his brother, Richard J. Bardwell (“Executor”) as executor.  The Will further bequeathed, by specific devise, certain property, including a parcel of real property located in Buffalo, New York (the “Property”), to the Plaintiff, Kim Ehlenfield (“Plaintiff”).  During the course of the probate of Decedent’s Will, the Plaintiff engaged the services of three (3) separate attorneys to protect and enforce her rights with respect to the Decedent’s estate.  After consultation with attorneys # 1 and # 2, the Plaintiff consented to the sale of the Property by the Executor to an unrelated, bona fide purchaser for an agreed upon sale price.  The Plaintiff’s consent to and acknowledgement of the sale were memorialized in a series of texts from and to Plaintiff and Executor as well as in several emails from and to Plaintiff’s first two attorneys.  The Executor, relying on the apparent consent of the Purchaser, did not seek a further Surrogate’s Court Order authorizing the sale and proceeded to sell the Property to the purchaser (hereinafter “Defendant”); tendering an Executor’s Deed (the “Deed”) at closing in accordance with the terms of their Contract of Sale.  After completing the sale, the Executor placed the sale proceeds in the Estate account and proceeded to settle the Estate’s debts while awaiting the statutory period for creditors to come forward with claims to toll .
 
At the time of distribution, the Plaintiff was advised that her share of the Estate would be considerably less than the sale price of the Property due to the required payment of the Estate’s debts, at which point Plaintiff retained the services of her third attorney, refused to execute the Waiver and Consent required by the Executor to disburse her share of the remaining estate, and commenced litigation against the Defendant to set aside the Deed and for an order declaring Plaintiff as the rightful owner of the Property.  Plaintiff and Defendant each filed motions for Summary Judgment on their respective claims for the Property. The Supreme Court, inter alia, denied Plaintiff's motion, granted Defendants' cross motion, dismissed the complaint, declared that the Deed is valid, and that Defendant owns the Property "free and clear of any claim by" Plaintiff.  The Plaintiff appealed the Lower Court’s Order and the Appellate Division, in affirming the Order, reasoned, in part, as follows:
 
 “..that, contrary to plaintiff's contention, defendants established on their cross motion that the sale was valid inasmuch as plaintiff and her first two attorneys affirmatively consented to the
sale. The day after decedent died, plaintiff sent a message to the brother about selling the property. Both of her initial attorneys knew of and affirmatively approved of the sale, and plaintiff's
consent to that sale is evidenced by the terms set forth in the various emails and text messages exchanged between plaintiff, the brother and their attorneys. It is well established that "e-mails exchanged between counsel, which contain their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds" and can be the basis of a binding agreement (Williamson v Delsener, 59 AD3d 291, 291, 874 NYS2d 41 [1st Dept 2009]”(emphasis added).

The Appellate Court further rejected the Plaintiff’s additional arguments alleging that the Deed was void ab initio because the Executor lacked Court authorization to sell the Property given the specific bequest in the Will and that the Plaintiff and/or her attorneys either acted without her consent or were “tricked” into agreeing to the sale.
               
Ehlenfield v. Kingsbury, 206 A.D.3d 1671
https://www.nycourts.gov/courts/ad4/clerk/decisions/2022/0610T1500/PDF/0207.pdf

This case is an important reminder to carefully consider all of the possible consequences of acknowledging or agreeing to offers by way of texts or emails without qualifying language that require separate, written confirmation of your client’s consent.