IN RE: the Application of CORINNE S. (2023)

PAPERS CONSIDERED:

Petitioner's order to show cause and memorandum of law 1-3

Court evaluator's affirmation in support 4

Cross-petitioner Shelly F.’s affirmation in Support 5

Temporary Guardian's affirmation in opposition 6

Cross-petitioner Wysocki's affidavit in opposition 7

Upon the foregoing papers, the motion by the petitioner for an order directing cross-petitioner Wysocki to produce Steven S.’s purported 2020 will is granted to the extent that cross-petitioner Wysocki is directed to produce to the temporary guardian, John Newman, all wills, originals and copies, executed or unexecuted, which are in his possession, on or before 10 am on Wednesday, May 10, 2023; the temporary guardian will in turn give copies of the will or wills provided to him to the parties and the court appointees. The temporary guardian will file with the Nassau County Surrogate any executed original will that is turned over to him.

The current phase of the trial of this Article 81 guardianship proceeding is to determine if Steven S. had capacity when he executed certain documents (e.g., health care proxy, power of attorney, business interest transfer) in May of 2020. The parties have been made aware of Steven S.’s will which was purportedly signed in June 2020. Cross-petitioner Wysocki and the temporary guardian have opposed this disclosure.

Mental Hygiene Law § 81.29(d) states:

If the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, or delegation under section 5-1501, 5-1505, or 5-1506 of the general obligations law or section two thousand nine hundred sixty-five of the public health law, or section two thousand nine hundred eighty-one of the public health law notwithstanding section two thousand nine hundred ninety-two of the public health law, or any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated or if the court determines that there has been a breach of fiduciary duty by the previously appointed agent. In such event, the court shall require that the agent account to the guardian. The court shall not, however, invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.

Cross-petitioner Wysocki maintains that the only 2020 will pertaining to Steven S., the alleged incapacitated person, is not executed, and thus has no probative value and should not be disclosed, and that “Non-Disclosure Agreement” executed by him and Steven S. prohibits the distribution of any of the wills.

The arguments lack merit. This Court, and not Wysocki, is ordering the disclosure of the wills. Furthermore, the court evaluator's report (which is not in evidence yet but has been distributed to the parties) contains the 2014 will, and multiple related business documents which can be construed to fall under the non-disclosure agreement have been introduced into evidence at trial without objection. Even assuming that the non-disclosure agreement applied, any claim that the unsigned 2020 will or any of the previous wills should not be disclosed has been waived through the failure to object to any of the other documents being disseminated; a breaching party cannot enforce a provision they breached (see DeCapua v. Dine-A-Mate, Inc., 292 AD2d 489, 491 [2nd Dep't 2002]).

Although this Court does not have the authority to invalidate the will allegedly executed by Steven S., the circumstances surrounding the purported execution of the 2020 will is probative and relevant to the decision this Court must ultimately make regarding the other documents purportedly executed in 2020. Cross-petitioner Wysocki has submitted a detailed affidavit explaining that Raul Reyes and Maritza Miller witnessed the 2020 will being notarized in July 2020. The content of this 2020 Will, even unsigned, is probative and relevant evidence that can be used by the parties to possibly show evidence of any alleged undue influence when compared to previous testamentary documents (see Matter of Brandon, 55 NY2d 206 [1982]; Hauzinger v. Hauzinger, 43 AD3d 1289 [4th Dep't 2007]).

The parties are permitted to question cross-petitioner Wysocki and any other witnesses about the circumstances surrounding the purported execution of the wills, subject to the possible assertion of the attorney-client privilege by counsel to Steven S. or the temporary guardian.

The foregoing constitutes the decision and order of the Court.

Gary F. Knobel, J.