NYS Appellate Ruling Shows Dangers of Homemade Wills

BY ARTHUR S. LEONARD | A four-judge panel of the New York State Appellate Division has affirmed a ruling by New York County Surrogate Nora Anderson that Ronald D. Myers’ homemade will should be construed to leave his stock portfolio, apart from some IBM stock, to his mother rather than to his same-sex life partner.

The July 2 ruling turned on the ambiguities of a document drafted many years ago without the assistance of a lawyer, applying standard rules of contract construction that appear to contradict Myers’ intention.

In his will, Myers wrote that he left “all monies” to his mother, and “all stocks of IBM” and “all personal property” to his life partner, whom he referred to as his “close friend.” He designated his mother and his life partner to be co-executors.

Ambiguity in language settled in favor of deceased gay man’s mother over his life partner

At the time he made his will, Myers’ sole stock ownership was IBM shares, but by the time of his death his portfolio included other significant stock holdings. He never revised his will to explicitly indicate how the rest of his stock should be distributed. The dispute between the co-executors was whether the rest of the stock portfolio would go to his mother or to his life partner, who was not named in the court’s opinion. Myers’ mother and his surviving partner are now both deceased, so the dispute is actually between successors on both sides.

Attorney Tom Shanahan, representing the fiduciary for the deceased life partner, argued that the stock should come within the term “personal property” rather than “monies” and go to his client and that Surrogate Anderson, applying the traditional preference of resolving ambiguities on inheritance in favor of legal relatives, had improperly favored the mother.

Farrell Fritz, attorney for the mother’s estate, pressed the general rule of construction that the specific bequest of IBM stock implies that Myers did not consider his other stock holdings to come within the general category of “personal property” so it should go to the mother.

The Appellate Division was not sympathetic to Shanahan’s argument, writing, “The court properly interpreted the will as intending to bequeath to decedent’s mother the stock in companies other than IBM, in view of the limiting language of the bequest to his life partner and the broad language of the bequest to his mother. If decedent viewed stock as ‘personal property,’ he would not have expressly noted the bequest of the IBM stock, since it would have been included in the more general bequest to his life partner.”

Since Myers did not own any stock other than IBM at the time he wrote the will, one could argue that his failure to mention other stock specifically was not evidence of such an intention, but rather the oversight of somebody unaware of the intricacies of drafting wills.

Shanahan also argued that Anderson’s reference to the surviving partner as a “friend” of Myers in her opinion was dismissive of the men’s relationship, but the court held because the will itself referred to the partner as Myers’ “close friend,” the court’s “reference to decedent’s life partner as a ‘friend’ does not show that the court relied on a presumption in favor of relatives or that it marginalized or disregarded decedent’s long-term relationship with his life partner.”

At the time the will was made many years ago, it might have been prudent for a gay testator to refer to his partner as a “close friend,” since a reference to somebody as a “lover” could open the door to “undue influence” arguments, which had traditionally been raised by surviving legal relatives in contesting gay people’s bequests to their surviving partners. At the time this will was drafted, New York State did not provide any legal status for same-sex partners, so Myers’ partner could not have been referred to as a “spouse” or “husband.”

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