In a classic tale of what happens when a poorly drafted will goes to probate, a woman is now left battling three charities over her late mother’s inheritance in a Manhattan surrogate court.
In her will, Jill Morris, who passed away at the age of 84 after a battle with breast cancer, left a multimillion-dollar estate, which consists of a West Village townhouse and a Southampton summer home, among other assets, to her longtime partner, Joan Anderson. The will also named three charities—Doctors Without Borders, the Natural Resources Defense Council and Save the Children—as residuary beneficiaries.
The will, which the court acknowledged contains various ambiguities, among other mistakes, contained a 30-day survivorship clause stipulating that certain beneficiaries, possibly including Joan, must outlive Jill by 30 days in order to inherit the tangible property. Joan, who was also named the executor of the will, however, passed away just 12 days later after suffering a stroke, leaving behind a daughter, Emlie Anderson.
When Emlie contacted the new executor to execute the will, she was told to return the keys to both houses and wasn’t allowed back in.
Charities Win in Surrogate’s Court
In its decision, the surrogate court ruled that the two properties in question should go to the charities, based on the survivorship clause in the will and the fact that Joan didn’t outlive Jill by the requisite 30 days—despite the fact that the survivorship clause appears in the section of the document discussing tangible property, and the houses left to Joan are considered real property.
Notwithstanding Emlie’s argument that Jill clearly didn’t intend such language in her will to apply to Joan’s inheritance, given Jill and Joan’s two decades' long relationship, the court held that it couldn’t be interpreted in Joan’s favor because the two women weren’t married. New York, which isn’t a common law marriage jurisdiction, typically presumes an ambiguity in a will isn’t meant to disinherit a spouse or other person close to the deceased.
Appeal in the Works
Rick Scarola, managing member at Scarola Zubatov Schaffzin PLLC in New York City, who represents Emlie (who plans to appeal the decision), says that the court failed to give weight to the fact that the reason the two women weren’t married was likely due to their age and notes the stigma that came with gay relationships throughout most of the women’s lives (same-sex marriage became legally recognized in New York state only in 2011). Furthermore, he said, the court noted that an ambiguity exists in the language, yet it proceeded to decide the case without any process of discovery or a trial.
Additionally, Scarola says that had Jill actually intended for the survivorship clause to apply to Joan and the real property, and to disinherit Emlie or any of Joan’s beneficiaries (for the record, Scarola says that Emlie was never at odds with Jill, and that she actually helped take care of her as her health deteriorated), much more specific language would have been used to accomplish this, such as a trust or life estate inheritance. He likened using a 30-day survivorship clause to knock out someone from inheriting to a game of roulette—you simply don’t take a gamble like that if you feel so strongly about leaving someone’s beneficiaries out of the inheritance. A survivorship clause is usually standard language in a will; however, the more common purpose of the language is usually to address a simultaneous death scenario.
What Went Wrong Here?
The will in this case is a textbook example of poor drafting. Scarola mentioned that the document was worked on by a non-attorney friend of Jill because the attorney who had originally drafted it became ill himself (and has since died) and was unavailable to update the document. That can explain how the boilerplate survivorship clause may have perhaps ended up in the wrong section of the document and was unclear as to whether it applies to the tangible property only or to the real property as well.
According to the New York Daily News, Patricia Harold, an attorney that helped Jill finalize the will three months before her death, filed an affidavit claiming that Jill unequivocally confirmed to her that “each individual listed therein had to survive her by 30 days in order to take under her will.” Emlie’s counsel is doubtful as to her credibility, however, submitting testimony from an expert in wills and trusts and estates law stating that it’s unlikely that “the lawyer would have had the foresight to discuss the one issue at the center of the contested will,” and notes that had the will been so carefully reviewed as Harold claims, the multitude of other typos and errors the document is riddled with would have been corrected as well.