Tom Doyle in the living room in his Horatio Street garden apartment. | DONNA ACETO
BY ARTHUR S. LEONARD | When William Cornwell died on June 19, 2014, believing he had made a will leaving his entire estate to Thomas Doyle, the man with whom he had shared his life for more than half a century, his departure was more than just a heartbreaking loss for Doyle. It soon became clear that Cornwell’s intention to pass on the West Village brick townhouse where the two men had lived since 1961, and from which they derived rental income as well, was not properly executed – and for Doyle, anything that could go wrong, legally speaking, threatened to go wrong.
In preparing and signing his will in 2004, Cornwell had not involved a lawyer, apparently, because no lawyer would have made the simple mistake he made: getting only one person to witness it.
After Cornwell died, Doyle turned to Sheila McNichols, Cornwell’s niece and a longtime friend to the two men, “for comfort, support, and advice,” said Doyle in a sworn petition filed this month in the New York County Surrogate’s Court. He showed her the will, and she suggested taking it to her lawyer, Peter Gray, to handle probate.
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Gray immediately saw the problem. The New York courts will not accept a will unless there are at least two sworn witnesses to the signing. Indeed, the will form that Cornwell used had spaces indicated for two witness signatures, but one was blank. The instruction sheet that came with the will form did not specifically say that two witnesses were required, although the instructions referred to witnesses in the plural several times.
Gray advised Doyle that the will could not be accepted for probate, and because the men had never married, Doyle had no rights as a surviving unmarried partner. The estate would go to Cornwell’s intestate heirs, two nephews and two nieces, all living in California, three of whom had virtually no relationship with Cornwell or Doyle.
This was a big blow to Doyle, now 85, because his living arrangements depended crucially on the rental income from the other apartments in the Horatio Street townhouse and his ability to continue occupying the ground floor apartment without paying rent (see Paul Schindler's profile). The men originally moved in as tenants after living together elsewhere beginning in 1958, and in 1979 when the owner decided to sell the building, Cornwell, who had greater resources to finance the purchase, bought it, setting up a corporate entity to own and operate it and putting Doyle on the board.
That building and the rental income it generates is the estate’s main asset. Cornwell and Doyle had lived on their Social Security checks and the rental income. Now Doyle was reduced to his individual monthly Social Security check (smaller than Cornwell’s, because Cornwell had a steady full-time job while Doyle often worked as a freelancer), having no pension or other resources.
Although the men lived together and considered themselves spouses, they had never taken any step to formalize their relationship. In the time they lived together, New York City had passed a domestic partnership ordinance in the 1990s, then in this century surrounding states and finally New York State in 2011 had changed their laws to allow same-sex couples to marry, but the two men never registered their partnership or married.
Doyle said they were planning to marry, and had even purchased rings in anticipation of a ceremony, but in the end Cornwell’s poor health prevented them from traveling to the city Marriage Bureau to tie the knot. The only legal documents of their relationship are health care proxy forms the men had made in 2002 (properly witnessed by two people) and joint bank account statements.
The townhouse's rear seen from the garden. | DONNA ACETO
According to Doyle, McNichols told him that she felt this situation wasn’t right and Doyle should not be shut out after more than 50 years. She retained Gray to draft an agreement by which the heirs would renounce their interest in the estate in favor of Doyle, and provide that the ownership of the building would go to Doyle as well. At the same time, Doyle would execute a will leaving everything to McNichols.
This plan seems to have proceeded at first, since Doyle’s attorney attached to the petition a copy of McNichols’ signed agreement to renounce her inheritance, as well as an affidavit she signed for filing in the probate court. In a sworn statement, Doyle said that he trusted and relied on McNichols to help him with decisions, named her as his power of attorney, and made her joint owner of his bank account. He depended on her to convince the other relatives to fall in with this plan.
But the other heirs were not willing to go along with it. Doyle claims that the two nephews had never even met Cornwell, and the other niece only met him fleetingly as a child, and none of them knew Doyle. Evidently the allure of a monetary windfall from a “rich uncle” was too powerful. Suddenly, Doyle was confronted with the contention that the papers McNichols signed were not valid, merely “samples,” and that McNichols and one of the nephews had been appointed by the Surrogate to administer the estate, sell the townhouse, and split up the proceeds among the heirs.
Indeed, according to a New York Times article published on October 23, the building is now in contract for about $7 million. The Times also reports (although Doyle does not mention it in his petition) that the nieces and nephews offered to let Doyle continue living in the building by including a clause in the sales contract under which he can stay for up to five years at a nominal rent of $10 a month, and that he would receive $250,000 from the proceeds of the sale, but Doyle, stiffened by the heirs’ resistance, decided to sue for the full inheritance he claims Cornwell intended to leave him.
Although he didn’t have a retainer agreement with Gray, Doyle said he regarded Gray as his attorney and trusted him to advise on how to protected his legal rights, but Gray never suggested any legal strategy to advance Doyle’s claim. Doyle said that some friends suggested he get another legal opinion, so he spoke with Polly Eustis, who confirmed Gray’s opinion that Doyle had no standing to inherit Cornwell’s estate.
Eventually, however, Doyle found Arthur Schwartz and Jamie Wolf, his current attorneys, who have devised a new strategy on his behalf.
It seems that Doyle and Cornwell had gone to Pennsylvania in 1991 to purchase a show dog together, and Doyle has the American Kennel Club registration certificate with the date of the sale, listing the two men as the owners. He also claims that they had a good friend in New Hope, in Bucks County, Pennsylvania, whom they visited several times on vacations. The significance of this is that under Pennsylvania law until January 2005, cohabiting individuals who spent time together in that state – even if they were not permanent residents – could be considered to have a common law marriage. Though New York law does not provide for common law marriage, the courts here have recognized Pennsylvania common law marriages in determining whether an individual who was not formally married to a partner should be considered a surviving spouse.
Tom Doyle in his garden. | DONNA ACETO
Doyle’s lawyers have constructed an intricate argument based on New York and Pennsylvania cases seeking to persuade the Surrogate’s Court that Doyle should be recognized as Cornwell’s sole heir, the surviving spouse of a man who had no children, and so should inherit the entire estate. Their argument crucially depends on a court retroactively applying last year’s Supreme Court marriage equality decision more than a decade into the past in order to find that two men spending time living together in Pennsylvania prior to 2005 had a common law marriage that New York will recognize.
The will that Cornwell signed may not be admissible for probate, but it would be admissible as evidence to support Doyle’s claim that the two men considered themselves to be married and that Cornwell planned to leave everything to Doyle.
This is a difficult argument to make in retrospect, so Schwartz and Wolf face an uphill battle in the Surrogate’s Court. Doyle’s petition is vague on some of the kinds of facts that would be helpful to his case, such as exactly when and for how long he and Cornwell stayed in New Hope on their vacation trips. All the affidavits submitted with the Petition to bolster his case come from Doyle’s relatives and neighbors in New York. There are no affidavits from anybody in Pennsylvania to corroborate Doyle’s recollections about those trips.
The affidavit by Sheila McNichols, signed two years ago, refers to the men as lifetime partners and domestic partners, but not as spouses. This isn’t surprising, since it was prepared under Gray’s supervision, before Doyle met his current lawyers, who first suggested the common law marriage theory after interviewing Doyle about the details of his relationship with Cornwell and their lives together.
New York court decisions have accepted common law marriage arguments based solely on the testimony of the alleged surviving spouse, but the cases have usually mentioned more details that a court would likely rely upon to support marital intent, such as the couple having had a religious ceremony or exchanged rings before a gathering of friends.
Doyle’s lawyers will also have to convince the court to waive various deadlines that were missed while Doyle was letting McNichols and Gray take the lead in handling the estate affairs. Doyle’s claim should have been filed shortly after Cornwell’s death, not more than two years later, but he argues in his petition that he only recently learned from his current attorney about his legal right as a common law surviving spouse. In a written argument accompanying the petition, Schwartz and Wolf contend that Doyle had reasonably relied on Gray and McNichols’ assurances that he would be taken care of, and he “did not think that he needed to pursue any sort of litigation to inherit from this estate.”
There are plenty of cautionary tales here for couples in similar situations. If significant property is involved in a relationship, getting a competent lawyer to prepare and supervise the execution of legal documents (including wills) is essential. Whether to marry is a decision that couples need to weigh carefully, but the benefits in terms of inheritance rights are substantial, especially taking into account the spousal deduction if an inheritance will be large enough to generate federal or state tax liability. Surviving spouses may also be eligible for a death benefit from Social Security or from their late spouse’s employee benefits plan and for monthly Social Security payments at the higher rate enjoyed by their deceased spouse.
These men first got together when these things weren’t spoken about, and the idea of same-sex marriage seemed a pipe dream in 1958! Unfortunately for Doyle, the couple did not manage to keep up with the times in a way that would have protected them.
The case is pending before New York County Surrogate Nora Anderson, who signed the document appointing the co-administrators and authorized the sale of the building.
