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Court Rules on No Contest Provision of the Will

This issue was brought to the court to extend the time to file objections in validation of the will and a motion for construction of the provision. This is concerning the legal proving of the will of a woman who died, leaving a taxable estate of almost two million dollars. The most recent will dated, two weeks before his death has been offered for validation by the appointed representative. However, the prior will has been filed with the court. Petitioner and several other interested parties have examined the witnesses. The court has extended the time for filing objections pending a decision on the construction issue.

A New York Probate Lawyer said the petitioner to the recent will, prays for a resolution that the no-contest provision does not apply to the other heirs, who include a foundation itself and a number of charities. The other organization supports the foundation’s position and has submitted an affidavit containing information that the no-contest provision is not directed to the charities. The woman’s grand-niece and other beneficiary have opposed the requested relief.

The recent will contains several gifts to individuals and charities of either specific dollar amounts, or items of tangible personal property, or a combination of both. New York City Probate Lawyers said in addition, the will sets up trust for her grand-niece and places another in trust for her sons. The grand-niece receives tangible personal effects and the house.
Under the will, the residue of the woman’s estate to a company as trustee for the foundation to be held as a continuous charitable fund in memory of the woman and her late husband. Nine charities are designated as income beneficiaries of fund assets .In addition, the will states that if the foundation or any of the other named organizations fails to qualify as a charity as defined in the internal revenue code, that organization’s portion of the fund’s income shall be distributed to such other qualifying charities as the trustee shall select.

Furthermore, written on her will that if any beneficiary under this, that in any manner oppose the attest of this Will or any of its provisions in any manner whatsoever, then in such event any share or interest in her estate given to such beneficiary under this Will is hereby revoked and shall be disposed of in the same manner provided herein as if such contesting beneficiary had predeceased her None of the parties has raised this issue in its written submissions.

Based on the record, the court is of the opinion that a refusal to interpret the provision under the will until after the verification. In light of the particular facts and circumstances surrounding the will’s preparation and execution, would tip the balance heavily against the petitioner and subject it and any other potential charitable opponent to risk. Manhattan Probate Lawyers said the lack of clarity of the particular provision itself creates an additional and excessive risk for the petitioner and a risk beyond that inherent.
The court finds that there are good and compelling reasons to proceed and render a construction in the instant case before admitting the will to rightfully validate. This situation is factually distinguishable .The maker of the will was an elderly, chronically ill, and was hospitalized during the time she had made extensive changes to her will. Less than two months before she died, she abruptly left her legal counsel with whom she worked for almost two years and put her legal affairs into the hands of another attorney, not previously known to her. In the twenty-four months prior to her death, she did no fewer than six wills. Her last will was signed only two weeks before she died.

The court also concerned that the will offered for validation seem to depart substantially from several of the woman’s primary estate planning goals, saving estate taxes and benefitting her charitable interests, as embedded in prior wills and articulated to her former counsel. Calculations provided by several of the parties indicate that because the recent will made by the deceased considerably increases gifts passing to certain individuals at the expense of the charitable organizations, the property will be subjected to considerable property taxes. The property now must pay two, rather than one, representative commissions.

The court considers that the almost unique facts and circumstances of the instant case give rise to such a present need. And therefore, the court interprets the recent will of the woman before making any determination about its verification.

Accordingly, the court finds that the will reflects a clear intent to benefit various charitable organizations is very important to the woman and her late husband, as well as numerous relatives and friends.

The court recognizes that the intention to benefit charitable institutions is a consistent and prominent feature in the decedent’s estate plan, as indicated by a comparison between the prior will and filed with the court, and the recent will offered for verification. The provision, containing the charitable trust, is carried over almost unchanged from the first will to the recent one. Indeed, by affidavit filed in this proceeding, the attorney-draftsman of four previous wills, states that in each of the wills he drafted as per request of the deceased woman, the residue was left in a perpetual charitable trust.

The court point out that the deceased woman intended the no-contest provision to extend to such beneficiaries, she could have added specific language to the will. The deceased woman did not specifically relate the no-contest provision to non-human beneficiaries evidences an intention that it does not apply to such entities.

The court is particularly troubled by the fact that, if indeed, as respondents argue, that the woman wished to include the charities in the forfeiture provisions, she left the ultimate distribution of the shares of unsuccessful charitable contestants completely in doubt. It requires too great an assumption to find in that the disposition of a share or shares, for that matter, in the event of an unsuccessful challenge. And, the woman cannot have intended to leave open the possibility that the entire residue could pass by intestacy if the foundation unsuccessfully contested, especially in light of the desire, consistently articulated in this and in prior wills, to create a lasting charitable memorial to herself and her late husband.

The court is aware of the fact that the will was drafted by a legal counsel who is an experienced counsel in properties practice, who could be expected to anticipate and make provision for such contingencies. Wills that are prepared by experienced attorney-draftspersons must be more strictly interpreted than instruments created by laypersons. And, therefore, the court do not interpret the absence of specificity and the failure to provide for the ultimate distribution of shares forfeited by charitable opponents, but rather deliberate reflections of the deceased woman’s desire that the no-contest clause have no applicability to the charitable foundations.
The court finds that, taken together, the language of the provision clause itself, with its lack of specific reference to charitable entities, the first appearance of the section in the recent will, positioned just after the pre-residuary gifts, to which substantial changes had been made, and the overall properties plan, consistently articulated in this and prior wills, clearly indicate that the deceased woman did not intend the provision to apply to the charities.

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