Kiknadze v. Elis

MEVLUD KIKNADZE v. DENIS ELIS

No. 1166

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

August 24, 2020

Circuit Court for Montgomery County

Sitting as the Orphans' Court

Case No. W91223

UNREPORTED

Graeff, Leahy, Battaglia, Lynne, A., (Senior Judge, Specially Assigned) JJ.

Opinion by Leahy, J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

A valid will may be revoked during the testator's lifetime in several ways under Md. Code, Estates & Trusts ("ET") § 4-105(1) & (2) (1974, 2017 Repl. Vol.)¹, including by "provision in a subsequent, validly executed will" and by "burning, cancelling, tearing, or obliterating the will, by the testator, or by some other person in the testator's presence and by the testator's express direction and consent[.]" In this appeal we are asked to decide whether a writing executed with the same formality as a will and purporting to revoke a valid will, but not otherwise making a disposition of the testator's property, satisfies ET § 4-105.

Nadya Elis died on March 15, 2017, leaving behind two wills executed in 1998 and 2002. According to the appellant, Melvud Kiknadze, who was Ms. Elis's husband, Ms. Elis also left a revocation document that purportedly revoked both wills. On June 12, 2018, the Circuit Court for Montgomery County, sitting as the orphans' court, admitted Ms. Elis's 2002 will to probate. That will that left her entire estate to her adult son, Denis Elis, appellee. The will also named Mr. Elis personal representative of her estate ("the Estate"). Mr. Kiknadze asserts that this was error because the will was revoked in 2016. We hold that the orphans' court did not err by ruling that the 2016 revocation failed to meet the requisites of ET § 4-105, and that, therefore, the 2002 will was not revoked.

BACKGROUND

The 1998 Will

On November 6, 1998, Ms. Elis, who then was married to Malcolm Houston, executed the "Last Will and Testament of Nadya Houston" ("the 1998 Will"). She devised her entire estate to Mr. Elis and appointed him to serve as personal representative of her estate. She also specified that it was her intention that Mr. Houston would not receive any portion of her estate. [E. 17]

The 2002 Will

A little over two years later, on December 4, 2002, Ms. Elis executed the "Last Will and Testament of Nadya V. Elis" ("2002 Will"). In the preamble, she expressly revoked all prior "Wills, Codicils and testamentary dispositions by me at anytime heretofore made." Thus, the 2002 Will revoked the 1998 Will in compliance with ET § 4-105(1). The 2002 Will did not differ substantively from the 1998 Will, but it changed her name to "Nadya V. Elis" and included several other stylistic changes.²

The Revocation Document

Fourteen years later, on December 30, 2016, Ms. Elis executed a document titled "REVOCATION OF WILL" stating:

I, Nadya V. Elis, do hereby expressly and unconditionally revoke, terminate, abrogate, nullify, tear apart, destroy, and declare completely nulland void any and all wills, codicils, and bequests made by me prior to the date hereof, including, without limitation, every will made by me on November 6, 1998, and every will unto which I subscribed my name on November 6, 1998.

(Bolded emphasis in title in original; italicized emphasis added). The revocation document was signed by Ms. Elis, notarized, and witnessed by two attorneys, including the attorney representing Kiknadze in this appeal.

On some unknown date, Ms. Elis also struck out each page of the 1998 Will; handwrote "Revoked" on each page; and signed each page "N. Elis."³

Orphans' Court Proceedings

Three months after executing the revocation document, Ms. Elis died. On May 10, 2017, Mr. Kiknadze, through counsel, filed a petition for administrative probate with the Register of Wills for Montgomery County ("Register of Wills"). In his petition, he averred that Ms. Elis died intestate and requested that he be appointed personal representative of the Estate. He listed himself and Mr. Elis as the interested parties. He did not reference or file with the Register of Wills the 1998 Will, the 2002 Will, or the revocation document.

The next day, letters of administration were granted to Mr. Kiknadze as personal representative of an intestate estate. On July 5, 2017, Mr. Elis hand-delivered the 2002 Will to the Register of Wills. He averred that he had "retrieved [the 2002 Will] from[Ms. Elis's] safe, which [he] had access to." Simultaneously, Mr. Elis filed a petition to admit the 2002 Will to judicial probate and for him to be named personal representative. He averred that he had retrieved the 2002 Will from Ms. Elis's safe with "a key given to me by my mother."

On November 2, 2017, Mr. Elis filed a Petition to Caveat. As pertinent, he alleged that, acting upon Mr. Kiknadze's petition for administrative probate, the Register of Wills had "admitted to probate" the revocation document.⁴ He further alleged that the revocation document and a "related property Deed, dated January 13, 2017 ("the 2017 Deed")"⁵ were not valid because Ms. Elis lacked testamentary capacity when she executed the documents; because the writings were procured by undue influence, fraud, or under duress; and/or that the writings were "not properly executed or recorded due to an immutable conflict of interest by the attorney drafting the documents." He asked the orphans' court to rule that the revocation document and the 2017 Deed were invalid, to admit the 2002 Will to probate, and to appoint him as special administrator of the Estate.

Mr. Kiknadze answered the petition to caveat on January 11, 2018, denying most of the allegations. On January 25, 2018, the orphans' court scheduled a two-day hearing on the petition to caveat for June 12 and June 13, 2018. Four months later, on May 24,2018, Mr. Kiknadze filed the revocation document and the 1998 Will with the Register of Wills.

The Orphans' Court Hearing

On June 12, 2018, the orphans' court held a hearing on the Petition to Caveat at which both parties appeared with counsel. At the outset of the hearing, the court asked Mr. Kiknadze's attorney to explain how the revocation document complied with ET § 4-105. In the court's view, the 2002 Will had effectively revoked the 1998 Will, but the revocation document, which specifically mentioned the 1998 Will but not the 2002 Will, did not satisfy ET § 4-105. The court emphasized that ET § 4-105(2) required the testator to perform a physical act to burn, destroy, or cancel the prior will and that the 2002 Will was in evidence and was not obliterated or stricken out in any way.

Counsel for Mr. Kiknadze asked to see the court file, explaining that he was never served with a copy of the 2002 Will and was unaware of its existence.⁶ The orphans' court made a copy of the 2002 Will for counsel and took a recess to permit him to review it.

When the court reconvened, counsel for Mr. Kiknadze requested a continuance.⁷ He questioned the origin of the 2002 Will because the signatures appeared different from those on the 1998 Will and explained that he wished to speak to the witnesses to "figure out how this whole thing came about."

The court then asked counsel about the 2017 Deed, which had transferred Ms. Elis's condominium unit to Mr. Kiknadze and herself as tenants by the entirety. Counsel for Mr. Kiknadze explained that the condominium unit was not part of the Estate because title vested with Mr. Kiknadze immediately upon Ms. Elis's death. The court agreed but noted that if Mr. Elis were appointed personal representative of the Estate under the 2002 Will, he could pursue an action on behalf of the Estate to void the inter vivos transfer and, if successful, the condominium unit would become part of the Estate. The orphans' court expressed concern about continuing the case considering the controversy over the 2017 Deed and the possibility that Mr. Kiknadze could sell the condominium unit in the interim.

Counsel for Mr. Elis pointed out for "additional context" that Ms. Elis was represented by independent counsel at the time she drew up the 2002 Will but was represented by Mr. Kiknadze's attorney when she signed the revocation document. He further explained that both Mr. Kiknadze's attorney, Mr. Chernov, and the attorney who signed as a witness had "worked adverse to Ms. Elis['s] . . . interest" in a domesticviolence proceeding that Ms. Elis brought against Mr. Kiknadze as well as a divorce proceeding that she initiated but later withdrew.

At that juncture, the orphans' court ruled that, having been presented with no evidence that the 2002 Will was not authentic, it would admit it to probate and name Mr. Elis personal representative of the Estate.

Mr. Chernov, interjected that, by the express language of the revocation document, Ms. Elis had evinced her intent to "destroy[], tear[] apart and completely declar[e] null and void any and all wills, codicils, and requests made prior to December 30, 2016." He suggested that perhaps Ms. Elis could not locate the 2002 Will when she executed the revocation document and, though under those circumstances she could not have destroyed it, she effectively "terminate[ed] the will . . . by cancellation" consistent with ET § 4-105(2).

The orphans' court disagreed that the revocation document was "sufficient under [s]ection 4-105" to revoke the 2002 Will and reiterated its ruling that the 2002 Will would be admitted to probate. The court issued an order that same day stating that the revocation document was not effective to revoke the 1998 Will or the 2002 Will; that the Petition to Caveat was moot; that the 2002 Will was admitted to probate; that Mr. Kiknadze was removed as special administrator of the Estate; and that Mr. Elis was appointed as personal representative in his place.

Mr. Kiknadze timely appealed and asks this Court to consider whether the 1998 and 200...