A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will’s terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.
A New York Probate Lawyer said that approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.
In 2006, a NY Probate Lawyer said the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.
A Nassau County Probate Lawyers said the trust document states, in pertinent part, that upon the Wife’s death, its principal is to be distributed to such one or more persons out of a class composed of her former Husband and her descendants and spouses of the her descendants on such terms as the Wife may appoint by a Will hereafter executed specifically referring to this power of appointment.
Subsequently, the Wife nominally exercised the rights of the power of appointment of the trust document through a one-paragraph will, executed in 2007 will. The 2007 will stated that it was not intended to modify or revoke the Joint Will, which shall remain in full force and effect. Rather, its sole purpose was, pursuant to the power of appointment of the trust document, to provide for the trust to convey, upon her death, its corpus, the condominium, in equal shares to the her four children.
Following the Wife’s death, the Husband filed a petition for the probate of the Joint Will. In 2008, the Husband applied for preliminary letters as evidence to be issued to him, which the Surrogate’s Court granted in an order on 2008. That same year, the Husband, as the preliminary executor of his former Wife’s property, commenced a turnover proceeding against, among others, his daughter and her Husband, seeking, to his son-in-law as trustee of the trust, to execute and deliver the deed to his former Wife’s condominium to the her properties.
In their answer to the Husband’s petition, the daughter and the son-in-law alleged, among other things, that the condominium was no longer a part of the properties, as a will is not effective until the death of the one who made it, and that neither the Joint Will nor the 2007 will prohibited the deceased Wife from making gifts or transferring property during her lifetime.
Thereafter, in August 2008, the son-in-law, as trustee of the trust, commenced a proceeding for the validity of the 2007 will.
The daughter and son-in-law filed objections to the Husband’s appointment as executor of the Wife’s estate. They alleged that the Wife had already transferred her ownership interest of the condominium to the trust on June 2, 2006, and, therefore, the property was neither a part of the Wife’s properties nor subject to the terms of the Joint Will that the Husband submitted for validity. They also alleged that the Husband had an absolute conflict of interest that prevented him from being the estate administrator of his former Wife’s properties according to her 2007 will and, if the Surrogate’s Court would allow him to act as his former Wife’s executor regardless, his letters should be limited and he should be required to post a bond.
On September 18, 2008, the Husband filed objections to his son-in-law’s petition for validity, claiming that the terms of the 2007 will violated the Joint Will and, therefore, the 2007 Will should not be admitted for validation. The son-in-law moved for summary judgment of dismissing the petition for the validation of the 2007 will, dismissing the objections to the son-in-law’s appointment as executor, and to direct the son-in-law to execute and deliver the deed to the condominium to the deceased Wife’s properties.
The terms of Article of the Joint Will therefore create two categories of property that passed to the survivor, any property comprising the entire property of the one dying first, and all property of which either of the couple has the power of disposal. The Husband asserted that even accepting his daughter’s argument that the Wife transferred title to the condominium to the trust, thereby placing such property outside the Joint Will, such property was nevertheless encompassed by the second category created by Article SECOND of the Joint Will.
Specifically, the Husband asserted that because his former Wife, retained upon her death the power of appointment regarding the disposal of the condominium, and exercised such power in her 2007 will by directing that upon her death, the trust was to convey such property to their four children, in equal shares, the deceased Wife retained the power of disposal over the condominium. Accordingly, because the deceased Wife retained the power of disposal over the condominium, the 2007 will was, in effect, a nullity, because it did not exercise the deceased Wife’s power of appointment in favor of the Husband, as required by Article SECOND of the Joint Will and, accordingly, that branch of his daughter’s cross motion which was for summary judgment on their petition for the validation of the 2007 will should be denied.
In a decision the Surrogate’s Court found that the Husband was entitled to summary judgment on the petition in the turnover proceeding to the extent of a direction that as co-trustee, his son-in-law transfers back the condominium to the property. The Surrogate’s Court held that the Husband was entitled to summary judgment on the petition for the validation of the Joint Will, dismissing the daughter’s objections to his appointment as executor, and dismissing the son-in-laws petition for the validity of the 2007 will.
In an order, the Surrogate’s Court, in effect, granted the Husband petition for the validity of the Joint Will and, in effect, granted that branch of his motion which was for summary judgment on the petition in the turnover proceeding, directing his son-in-law as trustee of the trust, to execute and deliver the deed to the condominium to him, as executor of his former Wife’s property.
At the time they executed the Joint Will in 1993, the couple had been married for nearly 43 years. As they did not separate until 1997, it is reasonable to infer, that at the time they executed the Joint Will, they intended to remain married and to give to each other their respective properties as well as all properties over which they retained power of disposal. Given the circumstances in which the Joint Will was executed—namely, a long-standing marriage—the phrase whether owned jointly or severally was not, as the daughter contend, intended to qualify the power of disposal phrase, but instead intended to expand the scope of the requisite power of disposal to include properties the couple owned jointly or severally with each other.
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