On March 24, 2010, a Petition for Judicial Settlement was filed by the Administrator. Jack Cavalier's counsel appeared in Court on May 13, 2010 to object to the Petition for Judicial Settlement. Formal objections were filed on June 2, 2010 alleging that the 1971 Jaguar and six firearms were never the property of the Decedent. Additionally, Jack Cavalier claimed that three of the firearms allegedly owned by him, and possessed by the Decedent, were not accounted for.

The Administrator replied to the objections on June 8, 2010 recounting the circumstances by which the Decedent came to leave no will. Decedent's counsel, Timothy Pellittiere allegedly met with the Decedent in the hospital prior to his death and informed him of the laws of intestacy. Based on this explanation, and with the knowledge that failing to execute a will would result in all of his assets passing to his spouse, as well as her appointment as Administrator, the Decedent informed his parents and wife that he did not want to sign a will. Jack Cavalier then stated to the group that the 1971 Jaguar in the Decedent's garage belonged to him. The parties did not further discuss the matter at that time.

The Administrator's reply papers also claim that while the 1971 Jaguar was initially purchased and registered by the Decedent' father, it was given to the Decedent "at some point," and ownership was transferred. As the automobile was owned by the Decedent at the time of his death, [*2]the Administrator argued, it properly passed to his spouse pursuant to EPTL §4-1.1.

While the initial Inventory filed by the Estate accounted for six firearms, the Accounting filed in connection with the Petition for Judicial Settlement listed only three. This discrepancy was not explained in the Administrator's reply papers or testimony.

Attempts by the Estate to settle the dispute were unsuccessful, and on July 27, 2010, a Hearing was held on the Objections to Judicial Settlement of the Final Account. At the Hearing, testimony was given by the Administrator, and the Objectant, as well as two witnesses for the Objectant: the Administrator's sister and brother-in-law, Lynn and Kenneth Yanklowski, and one witness for the Administrator: her mother, Carol Coyle. The testimony adduced at the Hearing primarily recounted facts which were already either undisputed, or had been previously affirmed to in the papers. The witnesses for both parties testified that they believed that the 1971 Jaguar had belonged to the Decedent or the Objectant, respectively. Also, both Lynn and Kenneth Yanklowski testified that some of the firearms in the Decedent's possession at the time of his death were auctioned by the Administrator. See, Transcript of Hearing, Matter of John T. Cavalier (No. 2009-480/A Aug. 20, 2010) (hereinafter "Transcript"), pp. 89, 103. The Administrator however testified that there were only three firearms in the Decedent's possession at death, and she has not auctioned or sold them. Transcript, p. 143. The Administrator and all three witnesses testified that they did not know the exact ownership or number of the various firearms stored in the Decedent's home.

Due to the understandable, but undeniable lack of evidence documenting any agreement between father and son regarding the ownership of the disputed items of personal property, the Objectant is unable to satisfy the substantial burden of proof required and the Account must be accepted by the Court as submitted by the Administrator.

The accounting party has the general burden of showing that all assets of the decedent's estate are fully accounted for. To a large extent, this burden is sustained through presumptions. The fiduciary's initial burden is met by merely placing the account into the record. See, Matter of Schnare, 191 AD2d 859, 594 N.Y.S.2d 827 (3d Dep't 1993). The objectant then "bears the affirmative burden of coming forward with evidence to establish that the account is inaccurate or incomplete." Id. at 860. In order to prevail in a claim that there are additional assets in the estate that are not accounted for, the objecting party must establish so with reasonable certainty. Conjecture and suspicion are not sufficient. See, e.g., Matter of Watson, 215 NY 209, 109 N.E. 86 (1915); Matter of Hunter, 170 A.D. 934, 154 N.Y.S. 1126 (4th Dep't 1915); Matter of Taylor, 912 N.Y.S.2d 651 (2d Dep't 2010).

I.)Automobile

This case is complicated for both parties by the fact that New York State does not issue title certificates for motor vehicles of model year 1972 or older, and therefore, no title exists evidencing ownership of the contested vehicle during the years in question. Also, the disputed vehicle was not driven on the road, obviating the legal need for any registration of the vehicle pursuant to Vehicle and Traffic Law §401. Therefore, despite proofs of insurance and registration of the vehicle after [*3]the dispute arose, there is no documentary evidence of ownership of the vehicle other than both parties claims, under oath, of conflicting "understandings" that existed between the Decedent and his father.

The following facts are incontrovertible. Jack Cavalier purchased the 1971 Jaguar on February 8, 1980 and had the vehicle in his possession for a number of years following the date of purchase. The vehicle was then possessed, insured, and maintained by the Decedent for at least fourteen years prior to his death, with no monetary reimbursement of any kind by the Objectant. The Objectant only again insured and attempted to register the vehicle during his son's final hospitalization two months prior to his death, during which time the parties agree that the dispute regarding ownership of the vehicle first arose. It is also undisputed that the Decedent met with an attorney, Timothy Pellittiere, prior to his death, but did not execute a will. The exact reasoning of the Decedent in making the decision not to execute a will is not agreed upon by the parties, but the fact that it was his conscious and informed decision not to do so has been acknowledged by both parties. See, Transcript, pp. 50-51; Pet. Reply to Objections, 15.

Objectant cites Young v. Seckler, 74 AD2d 155, 426 N.Y.S.2d 311 (2d Dep't 1980) as standing for the rule that registration of a motor vehicle creates a presumptive proof of ownership regardless of who pays for or maintains the vehicle. This case and others like it however, apply only to those situations in which "motor vehicles have been bought and are maintained for the benefit of spouses or other non-self-supporting family members." Young v. Seckler, 74 AD2d at 156. That clearly is not the case here. Furthermore, the registration of the vehicle is not dispositive due, in part, to it only occurring after the dispute regarding the vehicle's ownership arose.

II.Firearms

There is similarly insufficient proof that the three guns included in the Final Accounting were not owned by the Decedent. Jack Cavalier testified that all six of the guns were simply lent to the Decedent, with the expectation that they would be returned. Transcript, pp. 33-40. One gun in particular was allegedly borrowed' by the Decedent for nearly forty years. Transcript, p. 38. The testimony advanced by the Objectant does not satisfy the burden of proof required to demonstrate that that the three guns included in the Estate were not owned by the Decedent.

However, the initial Inventory filed by the Administrator clearly includes six guns. "In an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate. While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete." Matter of Taylor, 912 N.Y.S.2d 651 (2d Dep't 2010); citing Matter of Heino, 73 AD3d 1062, 901 N.Y.S.2d 671 (2d Dep't 2010). As for the three unaccounted for firearms, while the Administrator has not satisfied her burden that these firearms should not have been included in the Estate, the ambiguity is without legal consequence. As the Administrator is the sole beneficiary of the Decedent's estate, and it has been adequately established that even if they did exist, the Decedent owned all six firearms at the time of his death, no supplemental account need be filed by the Estate.

Accordingly, the Account shall be accepted as submitted and Final Judicial Settlement granted as requested. [*4]

Therefore, in accordance with the above decision it is hereby

ORDERED, ADJUDGED and DECREED that the final account be and the same hereby is judicially settled and allowed as filed, and that the Claim of John J. Cavalier be rejected.

February 4, 2011Edmund A. Calvaruso

Hon. Edmund A. Calvaruso, Surrogate

ENTER: