In its February 7, 2018 decision in Matter of Koegel, the Appellate Division, Second Department, held that defects in the acknowledgment forms in a 30-year old prenuptial agreement, i.e., the failure of the notary to recite that he knew the signatory, could be cured following the death of one of the parties.

Irene and John Koegel were married in August, 1984. Mr. Koegel had been widowed twice before marrying Irene. Mrs. Koegel had been widowed in July 1983. The Koegels were married for more than 29 years at the time of Mr. Koegel’s death in 2014. A month before their marriage, the Koegels had executed a prenuptial agreement.

Among other provisions the agreement provided that the parties ‘would not make a claim as a surviving spouse on any part of the estate of the other. Further, they irrevocably waived and relinquished ‘all right[s] to . . . any elective or statutory share granted under the laws of any jurisdiction.’ Both the decedent and Irene desired that their marriage ‘shall not in any way change their pre-existing legal right, or that of their respective children and heirs, in the property belonging to each of them at the time of said marriage or thereafter acquired.’

At the bottom of the first page, both the decedent and Irene signed the agreement. The second page contained certificates of acknowledgment of each signature, each signed by their respective attorneys as notaries. The decedent’s signature was acknowledged by William E. Donovan on July 26, 1984. The acknowledgment read, ‘On this 26 day of July, 1984, before me personally appeared WILLIAM F. KOEGEL, one of the signers and sealers of the foregoing instrument, and acknowledge the same to be his free act and deed.’ Irene’s signature was acknowledged by Curtis H. Jacobsen on July 30, 1984. The language of the acknowledgment relating to the Irene’s signature stated, ‘On this 30th day of July, 1984, before me personally appeared IRENE N. LAWRENCE, one of the signers and sealers of the foregoing instrument, and acknowledge the same to be her free act and deed.’ Neither acknowledgment attested to whether the decedent or Irene was known to the respective notaries.

In his last will and testament executed December 18, 2008, the decedent recited that, prior to his marriage to Irene, they entered into an ‘antenuptial agreement dated July 26, 1984,’ and that ‘[t]he bequests to and other dispositions for the benefit of [Irene] contained in this Will [we]re made by [him] in recognition of and notwithstanding said antenuptial agreement.’

The will provided that its provisions would control in the event of an inconsistency between it and those of the antenuptial agreement, but that the antenuptial agreement would be otherwise unaffected by the will. The decedent noted that he had made other dispositions in favor of Irene, ‘including but not limited to . . . designat[ing] her as the beneficiary of certain retirement benefits payable at [his] death.’

The decedent bequeathed to Irene, in the event that she survived him, all of his automobiles, his interest in a condominium apartment in Vero Beach, Florida, subject to any outstanding mortgage and all of its contents, his condominium in Somers, New York, and all of its contents and the contents of their storage unit. The will provided that Irene was to have the condominium in Somers for her exclusive use and occupancy, free of any rent, until her interest terminated upon remarriage, if the premises ceased to be her principal residence, or if she died. She was required to pay all carrying costs with respect to this property. Upon termination of Irene’s interest, the property was to be sold and the proceeds distributed to his then living issue.

The decedent also made other specific bequests concerning personal property and sums of money to other individuals and the Hitchcock Presbyterian Church. The remainder of his estate was to be divided among his issue who survived him. The decedent’s son, the petitioner, John B. Koegel (hereinafter John), was appointed as the executor of the decedent’s estate.

The will was witnessed by three individuals who stated that the decedent declared the document to be his last will and testament. The subscribing witnesses executed a separate affidavit, sworn to before a notary on December 18, 2008, in which they swore that, inter alia, the decedent was of sound mind, memory, and understanding and had indicated to them that he had read the will and the contents expressed his wishes as to how his estate was to be distributed.

John filed a petition to probate the decedent’s last will and testament, and the Surrogate’s Court granted the petition. Letters testamentary were issued to John on March 21, 2014.

On August 21, 2014, Irene filed with the court a notarized notice of election. Irene stated that, as the decedent’s surviving spouse, she was exercising her right of election pursuant to Estates, Powers and Trusts Law § 5-1.1-A ‘to take [her] share of the Decedent’s estate to which [she was] entitled pursuant to said statute.’

In December 2014, John filed a petition to invalidate Irene’s notice of election and for a declaration that she was not entitled to an elective share of the decedent’s estate. John alleged that Irene was represented by counsel at the time she freely entered into the prenuptial agreement, pursuant to which she waived her right to assert an elective share against the decedent’s estate. He also alleged that Irene was knowledgeable about the decedent’s assets and had reasonable and sufficient time to make inquiries about his finances if she wished to do so prior to entering into the prenuptial agreement.

John asserted that Irene accepted the benefits of the prenuptial agreement during the marriage without ever raising questions about its validity or fairness. Thus, he claimed, she was barred by the doctrine of laches from contesting the terms of the prenuptial agreement.

In her answer and objections to the petition, Irene admitted that she signed the agreement, but denied that either her signature or the decedent’s signature was duly acknowledged in accordance with applicable statutes. As for Jacobsen’s representation of her at the time the prenuptial agreement was executed, she admitted that Jacobsen was known to her by virtue of his prior representation of her regarding the settlement of her first husband’s estate.

For her first affirmative defense and objection, Irene asserted that the prenuptial agreement was defective, invalid, and unenforceable pursuant to the 2013 New York Court of Appeals decision in Galetta v Galetta, 21 N.Y.3d 186, because the acknowledgments omitted language expressly stating that the notaries knew the signers or had ascertained, through some sort of proof, that the signers were the persons described as required by Domestic Relations Law § 236(B)(3).

Irene to dismiss the petition to set aside her notice of election on the basis that the acknowledgment of the signatures accompanying the prenuptial agreement omitted required language.

In opposition to Irene’s motion, John argued that the form of the 1984 acknowledgments was proper and complied with the then-applicable requirements of EPTL 5-1.1, and substantially complied with the current requirements for acknowledgments through the use of the phrase ‘personally appeared.’ John contended that the phrase ‘personally appeared’ reflected that the signer was ‘known’ to the notary.

In any event, John noted that the two notaries, Jacobsen and Donovan, submitted affidavits stating that they respectively knew Irene and the decedent at the time that the agreement was executed and pointed out that Irene, in her answer and supporting affidavit, admitted that she signed the agreement and knew Jacobsen from his representation of her as the co-executor of her first husband’s estate and had retained him to represent her with respect to the prenuptial agreement. John claimed that if there had been any technical defect with respect to the acknowledgments, the Jacobsen and Donovan affidavits cured those defects.

In further opposition to Irene’s motion, John submitted Donovan’s affidavit stating that, in 1984, he was a partner at Rogers & Wells, of which the decedent was also a partner. He recalled taking the acknowledgment that appeared on page two of the prenuptial agreement and stated that the decedent ‘did not have to provide me with any identification of who he was because he was well known to me at the time.’

John also submitted Jacobsen’s affidavit stating that, in 1984, he was an attorney with Spengler Carlson Gubar Brodsky & Frischling, which had represented the estate of Irene’s first husband, of which Irene was the co-executor. He recalled that he took the acknowledgment of Irene which appeared on page two of the prenuptial agreement. He explained that Irene did not have to provide identification to him since she was known to him at the time.

In an order dated June 23, 2015, the Westchester Acting Surrogate Thomas E. Walsh denied Irene’s motion. Irene appealed.

The Second Department noted that in Galetta, the Court of Appeals left unanswered the question of whether a defective acknowledgment of a prenuptial agreement could be remedied by extrinsic proof provided by the notary public who took a party’s signature. The Second Department here held that it could.

On appeal, Irene asserted that the importance of uniformity and predictable enforcement mandates that prenuptial agreements which do not include proper acknowledgments are not valid. She claimed that, as a matter of public policy, courts should not allow parties the ability to cure defective acknowledgments because to do so would dilute the statute.

John maintained that Galetta did not establish a bright-line rule prohibiting a defective acknowledgment from being cured. He points out that, in Galetta, the notary’s affidavit submitted by the party seeking to cure the defect was deficient since the notary did not personally know the party whose acknowledgment he took and the notary could not categorically swear that he was certain he took the appropriate steps to ascertain the identity of the party acknowledging the agreement. Also, the notary could only swear that he recognized his own signature, that he was employed at a bank at the time he executed the acknowledgment, and that he presumed that he followed his usual course and practice in taking acknowledgments although he had no independent memory of it.

Domestic Relations Law § 236(B)(3) provides, in part, that ‘[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.’ Such agreement may include ‘a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will’ (Domestic Relations Law § 236[B][3]).

A proper acknowledgment requires both an oral declaration by the signer of the document made before an authorized officer and a written certificate of acknowledgment, attached to the agreement, endorsed by an authorized public officer attesting to the oral declaration. However, ‘there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute.

Pursuant to Real Property Law § 309-a(1), ‘[t]he certificate of an acknowledgment, within this state, of a conveyance or other instrument in respect to real property situate in this state, by a person, must conform substantially with the following form, the blanks being properly filled.’ The certificate of an acknowledgment form appears in the statute as follows:

State of New York    )
) ss.:
County of . . .            )

On the . . . day of . . . in the year . . . before me, the undersigned, personally appeared . . . , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Here, unlike in the Court of Appeals case of Matisoff v. Dobi, 90 N.Y.2d 127 (1997), the agreement was in fact acknowledged a the time it was executed. Moreover, in Galetta, the acknowledgment relating to the husband’s signature, failed to indicate that the notary ‘confirmed the identity of the person executing the document or that the person was the individual described in the document.’ In opposition to the wife’s motion for summary judgment in Galetta, the husband submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment. The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature.

The Court of Appeals ruled in Galetta that that affidavit was insufficient. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document. Given these statements, the Court found that the husband could not rely on the notary’s custom and practice to fill in the evidentiary gaps because ‘the averments presented by the notary public in this case [we]re too conclusory to fall into this category.’

Further, the Court stated that if the notary had recalled acknowledging the husband’s signature, ‘he might have been able to fill in the gap in the certificate by averring that he recalled having confirmed [the husband’s] identity, without specifying how.’ However, since the notary did not recall acknowledging the husband’s signature and was attempting to rely on custom and practice evidence, the Court stated that ‘it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used—and proof of that type is absent here.’

Here, the Surrogate’s Court properly declined to dismiss the petition on the basis of documentary evidence in light of John’s submission in opposition to her motion. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement.

Accordingly, the Surrogate’s Court properly denied Irene’s motion to dismiss the petition.

Robert M. Redis of McCarthy Fingar LLP, of White Plains, represented the Executor. Andrew D. Himmel, of Himmel & Bernstein, LLP, of Manhattan, represented the wife.