Power of Attorney Abuse Doesn't Defeat Specific Bequest: NY Appellate Court Rules

This week we wanted to draw your attention to an interesting decision out of the Appellate Division, Second Department, which, in analyzing the Doctrine of Ademption as it related to a Specific Bequest of Real Property in a Will, affirmed a Lower Court’s Order awarding Summary Judgment to a petitioner’s claim and enforced the Specific Bequest despite the decedent not owning a fee interest in the disputed property at the time of her death.
 The relevant facts of, as well as a link to, the case are set forth below. 

For those that may practice outside of the Trusts and Estates area of the law, the Doctrine of Ademption provides that "[u]nless the property devised or the thing bequeathed was found in the estate of the [decedent] at the time of [his or] her death, the Will was necessarily inoperative as to that provision" (Matter of Charles, 3 AD2d 119, 121-122 [1957]).  In the present matter, the decedent's Will specifically bequeathed her real property to her two daughters, Marcia Fitzsimmons and Brenda Watson, with Watson to also retain a life estate. Before the decedent's death, Watson used a power of attorney to deed the real property to herself, and she thereafter obtained a mortgage on the property (the “Watson Mortgage”).  In an accounting proceeding commenced by Fitzsimmons, the Surrogate's Court found that the deed to Watson was null and void.  In a related turnover proceeding against Watson and the mortgagee of the real property, the Surrogate's Court found that the deed to Watson was voidable, rather than void ab initio (see Matter of Hill, 32 Misc 3d 1243[A], 2011 NY Slip Op 51693[U] [Sur Ct, Queens County 2011]).
 
In an effort to secure an interest in the property free and clear of the Watson Mortgage, Fitzsimmons contended that because the deed to Watson was not void ab initio and was not declared void until sometime after the decedent's death in the accounting proceeding, the decedent did not own the property at the time of her death, having deeded it to Watson. As such, Fitzsimmons argued that that the devise of the property in the Will adeemed, and that the property should pass through the residuary estate, which left 50% each to Fitzsimmons and Watson, thereby cutting off Watson's life estate.  Both the Lower Court and Appellate Court rejected this argument and held, that the Specific Devise of property should not be determined to have adeemed, notwithstanding that the property was not owned in fee by the decedent at the time of her death.  Both Courts further determined that because the deed in question was only voidable, the decedent retained “equitable” title to the property, which equitable title reverted to her estate when Fitzsimmons successfully asserted the estate's claims to the property resulting in the ultimate enforcement of the Specific Bequest.

To view this case, click the link below: 
https://www.nycourts.gov/reporter/3dseries/2016/2016_00499.htm