In Re Cover

761 N.E.2d 571 (N.Y. 2001)

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Nature of the Case

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Facts

Edward shot and killed his wife, Kathleen, then turned the gun on himself and took his own life. Edward was survived by his parents, Edward F. Covert and Joan Covert, and his siblings, Theresa Guinan, Gayle Diffendorf and Phyllis Thompson (the Coverts). Excluding Edward, Kathleen was survived by her parents, Robert L. Millard and Carol A. Millard, and her siblings, Robert L. Millard, II and Kelly Hawley (the Millards). Edward and Kathleen had executed a joint will providing for the final disposition of their property. The will designated Kelly Hawley as executrix. The will provided, 'upon the death of one of us leaving the other of us surviving, all the property and estate of every kind and nature and wheresoever situate, of the one so dying first of which he or she has the power of disposal, is hereby given, devised and bequeathed to the survivor absolutely and without any limitation or restriction whatsoever.' Upon the death of the surviving spouse, the will bequeathed the couple's jointly owned timeshare and jewelry to Kelly Hawley or named alternative legatees. Also upon the death of the survivor, the residuary estate was to be distributed into three equal shares--one third each to Edward's parents, Kathleen's parents, and decedents' siblings. Kathleen's combined probate and nonprobate assets were valued at $225,000. Edward's assets--including two life insurance policies and a union retirement fund payable to Kathleen as primary beneficiary and his parents as contingent beneficiaries--were worth approximately $71,000. The couple further held assets valued at $121,000 as joint tenants. Hawley petitioned Surrogate's Court requesting direction in the distribution of the estates. The Coverts demanded strict compliance with the express terms of the will. The Millards requested that the court preclude the Coverts from taking under the will due to Edward's role in Kathleen's death. The Coverts moved for summary judgment to dismiss the Millards' answer and to compel distribution according to the terms of the will. The court granted summary judgment to the Millards and precluded the Coverts from taking any of Kathleen's property, yet allowed them to receive a share of Edward's individual property. The Appellate Division unanimously modified the order, treating Edward as having fictionally predeceased Kathleen and directing that all property pass through Kathleen's estate, ultimately to be distributed in equal thirds. The Millards appealed.