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BUTLER v. ENCYCLOPAEDIA BRITANNICA

January 11, 1994

NICOLETTE ANNE BUTLER, Plaintiff,
v.
ENCYCLOPAEDIA BRITANNICA, INC., a New York corporation, THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, and ANTHONY J. COTINI, Defendants.



The opinion of the court was delivered by: WILLIAM T. HART

 This case centers around a dispute between Nicolette Butler ("Butler") and Anthony Cotini ("Cotini"), respectively the daughter and husband of Celia Cotini ("Celia"), over who is entitled to benefits payable by the Encyclopaedia Britannica Pension Plan (the "Pension Plan") and Encyclopaedia Britannica Savings Plan (the "Savings Plan") following the death of Celia in August 1992. Encyclopaedia Britannica, Inc. ("Britannica") is the Plan Administrator for both plans. *fn1" Both plans are governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Presently pending are various cross motions for summary judgment. *fn2" Except as indicated below, the facts are not in dispute.

 At the time of her death, Celia was 65 years old and an employee of Britannica. She was employed by Britannica for 37 years. Two benefits were payable upon Celia's death, pension benefits titled a "spouse's death benefit" in the Pension Plan and savings benefits payable by the Savings Plan. The pension benefits were fully funded by Britannica while Celia made contributions to the Savings Plan. Celia had filed designation forms with both plans designating Butler as the beneficiary of pension benefits and savings benefits. Both forms were dated August 27, 1990 and were signed by Cotini.

 The pension benefits designation form provides in part:

 
* Complete Section 2 to designate your beneficiaries under the Encyclopaedia Britannica Pension Plan
 
* * *
 
Section 2--Pension Plan Beneficiary Designations
 
* If you are married to an eligible spouse (as defined by the plan), your spouse is your primary Pension Plan beneficiary automatically.
 
* If you are not married (or if you are married but not to an eligible spouse, as defined by the plan) you may designate any person as your primary Pension Plan beneficiary. However, if you are married and designate a primary Pension Plan beneficiary other than your spouse, your spouse must provide his/her written consent by completing Section 3 below. Your spouse must then sign and date this form in the space provided and your spouse's signature must be witnessed by a notary public.
 
Primary Savings Plan Beneficiary: I designate the following person as my primary beneficiary to receive--in the event of my death--any amounts payable to my beneficiary under the terms and provisions of the Encyclopaedia Britannica Pension Plan.
 
* * *
 
Section 3--Spouse's Waiver of Primary Beneficiary Designation
 
I , spouse of , hereby consent to the primary beneficiary designation made in Section 2 by my spouse, a participant in the Encyclopaedia Britannica Pension Plan. The designation provides that any amounts payable to my spouse under the terms and provisions of the Encyclopaedia Britannica Pension Plan will be paid--in the event of my spouse's death--to the designated primary beneficiary. I understand that the effect of this designation is to cause my spouse's account balance to be paid to someone other than myself, that this beneficiary designation is not valid unless I consent to it and that my consent is irrevocable unless my spouse revokes this beneficiary designation.
 
Spouse's Signature
 
Date
 
On this day of , 19 , before me personally came to me known to be the individual described above and who executed the same as his/her free and voluntary act for the uses and purposes stated herein.
 
Notary Public's Signature
 
Date Commission Expires

 The savings benefits designation form is similar. It provides in part:

 
* Complete Section 2 to designate your beneficiaries under the Encyclopaedia Britannica Savings Plan
 
* * *
 
Section 2--Savings Plan Beneficiary Designations
 
You can name anyone you want as your primary and contingent Savings Plan beneficiaries. However, if you are married and designate a primary Savings Plan beneficiary other than your spouse, your spouse must provide his/her written consent by completing Section 3 below. Your spouse must then sign and date this form in the space provided and your spouse's signature must be witnessed by a notary public.
 
Primary Savings Plan Beneficiary: I designate the following person as my primary beneficiary to receive--in the event of my death--any amounts payable to my beneficiary under the terms and provisions of the Encyclopaedia Britannica Savings Plan.
 
* * *
 
Section 3--Spouse's Waiver of Primary Beneficiary Designation

 Spouse's Signature

 Date

 
On this day of , 19 , before me personally came to me known to be the individual described above and who executed the same as his/her free and voluntary act for the uses and purposes stated herein.
 
Notary Public's Signature
 
Date Commission Expires

 Celia completed a designation form for each Plan. Both forms are dated August 27, 1990 and both forms designate Butler as the primary beneficiary and Butler's children as the contingent beneficiaries. The forms are signed by both Celia and Cotini. The notary portion of each form is filled in and signed and notarized by Louise Joslyn, an employee of Britannica. Cotini admits that his signature on each form is authentic. He, however, denies that he read the forms when he signed them and also denies that the forms were signed in the presence of the notary public. Joslyn does not specifically recall meeting Cotini and testified that she sometimes notarized documents without the signing party being present. Cotini contends that the uncontested facts show that he did not sign the forms in the notary's presence. Butler contends that a notarization is presumed to be correct and that the uncontested facts are that Cotini has failed to rebut the presumption that each form was signed in the presence of the notary. *fn3"

 A notary public's certification of acknowledgement is presumed correct. See 1 Am. Jur. 2d Acknowledgements §§ 92, 94, 98 (1962). That presumption can be overcome, however, including by evidence that the signing party was not present before the notary. See id. §§ 94, 98. For purposes of the summary judgment motion, a factual dispute exists as to whether Cotini signed the pension benefits designation in the notary public's ...


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