Judge denies petition claiming father’s estate

A Surrogate’s Court judge in Oneida County has dismissed a petition filed by siblings claiming they have a right to inherit their father’s estate.

The petition was filed by Nicole A. Ivie and Stephen R. Panella to enforce the terms of a separation agreement between their parents — decedent Richard N. Panella and Carol D. Jubenville.

The children sought to enforce a provision of the agreement that they claim obligated their father to leave them 100% of his estate.

After a two-day bench trial, Surrogate’s Court Judge Louis P. Gigliotti ruled in favor of Richard Whalen’s second wife, Deborah Whalen.

“The facts to be gleaned from the evidence are straightforward and essentially undisputed,” Gigliotti wrote.

Carol and Richard were married on April 22, 1972. In 1985, using the same attorney, they both executed wills that left their respective estates to each other. According to the wills, upon the death of the last surviving spouse, the residual estate would be left to the children, according to the decision.

In May 1986, less than a year after those wills were executed, the couple separated. In the fall of 1989, they signed a separation agreement.

According to the agreement, they both agreed to execute wills naming the two children as irrevocable beneficiaries of 100% of their estates. Each party was supposed to provide the other with a copy of their will.

On Dec. 15, 1989, their final decree of divorce was filed in the Oneida County Clerk’s Office. The provision in the separation agreement stating that they would execute wills leaving their estates to the children also appears in the divorce decree.

The divorce decree also states that the separation agreement would be referenced in the judgment of divorce but won’t be “merged with this Judgment and shall survive and continue to be an independent contact binding upon the parties hereto,” according to the decision.

Carol remarried in July 1992, and Richard remarried in 2000. And they both executed new wills. Carol executed a will on Sept. 14, 2001, that revoked all prior wills. She left personal and household effects to her second husband and, if he were to predecease her, then it would go to the children and the children of her second husband. Carol never provided a copy of this will to Richard.

Richard’s will, dated April 27, 2016, left his entire estate to his second wife, Deborah Whalen. There is nothing in the record showing that he gave his first wife a copy of the will before he died on March 15, 2017.

After he died, Carol executed a new will on May 30, 2017. That will leaves her estate to an irrevocable trust “that cannot be altered, amended, revoked or terminated in any way,” according to Gigliotti’s decision.

After Carol and her second husband died, the trust would go to their children and other family members, educational institutions, and community organizations.

In 2019, Carol read through her divorce papers and realized, for the first time, that Richard’s Will did not comply with the terms of the agreement, according to the decision.

The petitioners — Nicole A. Ivie and Stephen R. Panella — made a breach of contract claim, arguing that their father breached the terms of the divorce decree and separation agreement when he executed the May 30, 2017, will.

But Gigliotto ruled that the agreement was a contract between their parents, while the children are third parties.

“Given that the Children allege breach of contract against their father, they need to establish that their mother procured this promise on their behalf,” Gigliotti wrote.

But Carol testified that she had no specific recollection of who asked to insert the language about the wills in the agreement, but she knew it wasn’t her.

“She was of the understanding that the provision was intended to benefit the children only while they were minors. Her actions confirm this understanding, as she said she waited until her children were no longer minors before changing her will in 2001,” Gigliotti wrote.

Gigliotti concluded that “Carol did not intend to confer upon the children the benefit they now seek to enforce against decedent’s estate.”

“Without such an intent on the part of the promisee, the children cannot prevail as third-party beneficiaries,” he wrote.

Because Carol and Richard both changed their wills without notifying the other, Gigliotti concluded that neither parent was cognizant of their obligation under the agreement.

“Given that decedent also never executed an irrevocable will as required by the agreement, the Court finds this particular provision cannot be enforced by the children due to lack of performance on the part of their parents,” Gigliotti wrote.

“The Court concludes that petitioners Nicole A. Ivey and Stephen R. Panella have failed to establish a basis for recovery against the estate of Richard N. Panella,” Gigliotti wrote.

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