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Court Determines the Validity of a Notice of Election

Probate Lawyers show that the instant proceeding was commenced by the executors pursuant to section 145-a of the Surrogate’s Court Act to determine the validity and effect of the widow’s notice of election served and filed pursuant to section 18 of the Decedent Estate Law. However, after commencement of the proceeding, the widow withdrew said issue, and instead submitted for the Court’s determination on a basis of conceded facts the issue raised in her counterclaim for $10,000 with interest from date of decedent’s death. Widow, in her counterclaim alleges that she and decedent entered into a written agreement wherein inter alia decedent agreed to leave her a legacy of $10,000; that he failed to provide for her in his will which was admitted to probate; that the estate is sufficient for all purposes; that she duly performed all the terms, conditions and covenants on her part to be performed; that payment of said amount has been refused although duly demanded; and the widow therefore prays for an award in said amount. The other parties contend that said agreement between decedent and the said widow is unenforceable.

Under the agreement, the widow, under her maiden name renounced any and all right, title, interest in any property that decedent was then seized of or might thereafter acquire, as well as to the estate of decedent in the event that he predeceased her. Decedent on his part ‘promises and agrees to make a provision in his Last Will and Testament whereby the first party shall receive a bequest in the sum of $10,000.’ This is followed by the final paragraph stating: ‘The reason, purpose and object of this agreement is that the parties thereto intend to marry and become husband and wife, and each having children by a prior marriage, and each being desirous that their children shall inherit there respective property and estate, have entered into mutual or like agreements for the purpose of assuring each to the other, that they will not claim any interest in the estate of the one dying first, except as aforesaid.’

A New York Estate Lawyer said it would appear that the agreement contemplated a marriage in future which, though prohibited in this State by reason of the fact that decedent was widow’s uncle, could have been entered into validly in some other jurisdiction in which event the marriage would be entitled to recognition as valid in this State. The relationship of decedent and the widow was not meretricious. On March 23, 1945 decedent, a widower 72 years old, and the wife, a widow 57 years old, had obtained a marriage license in Brooklyn and entered into a religious marriage ceremony. They lived together for more than 15 years as husband and wife. Their marriage apparently was entered into in good faith. It was solemnized by a Rabbi who, in a statement, certified that he united the parties in marriage on March 23, 1945, and that the said widow was decedent’s legal wife. The agreement by decedent to provide a legacy for the widow being in writing satisfies the Statute of Frauds strongly relied upon by the other parties is not in point. It deals with an ante-nuptial contract which contemplated a marriage that would be invalid because of a living spouse, whereas in the instant case there was no impediment to the marriage in a jurisdiction where they could legally marry.

Bronx Probate Lawyers said that the Court determines that the parties entered into a valid bilateral agreement, the mutual promises of the parties constituting sufficient consideration. The legality of the agreement and the rights of the parties thereto were fixed as of the date of the execution of the agreement. The Court finds that the widow is entitled to payment of the sum of $10,000 with accrued interest beginning seven months after issuance of letters testamentary.

Brooklyn Probate Lawyers said the law substantially provides that, “Where a testator executes a will after August thirty-first, nineteen hundred thirty but prior to September first, nineteen hundred sixty-six, and is survived by a spouse, a personal right of election is given to the surviving spouse to take a share of the decedent’s estate, subject to the following:(A) For the purposes of this section, the elective share of the surviving spouse is one-third of the net estate if the decedent is survived by one or more issue and, in all other cases, one-half of such net estate. In computing the net estate, debts, administration and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves the surviving spouse from contributing to all such taxes the amounts apportioned against him under 2-1.8. (B) Where the elective share is over twenty-five hundred dollars and the testator has made a testamentary disposition in trust of an amount equal to or greater than the elective share, with income therefrom payable to the surviving spouse for life, the surviving spouse has the limited right to elect to take the sum of twenty-five hundred dollars absolutely, which shall be deducted from the principal of such trust and the terms of the will remain otherwise effective. (C) Where the elective share of the surviving spouse does not exceed twenty-five hundred dollars, the surviving spouse has the right to elect to take his elective share absolutely, which shall be in lieu of any provision for his benefit in the will. (D) Where the will contains an absolute disposition to the surviving spouse of or in excess of the sum of twenty-five hundred dollars and also a disposition in trust with income payable to such spouse for life of an amount equal to or greater than the difference between the absolute disposition and his elective share, the surviving spouse has no right of election. (E) Where the will contains an absolute disposition to the surviving spouse of an amount less than the sum of twenty-five hundred dollars and also a disposition in trust with income payable to such spouse for life of an amount equal to or greater than the difference between the absolute disposition and his elective share, the surviving spouse has the limited right to elect to take the sum of twenty-five hundred dollars, inclusive of the amount of such absolute disposition, and the difference between such disposition and the sum of twenty-five hundred dollars shall be deducted from the principal of such trust and the terms of the will remain otherwise effective. (F) Where the aggregate of the provisions in the will for the surviving spouse, including the principal of a trust, an absolute disposition or any other kind of testamentary disposition is less than the elective share, the surviving spouse has the limited right to elect to take the difference between such aggregate and the amount of the elective share, and the terms of the will remain otherwise effective. In every estate, the surviving spouse has the limited right to withdraw the sum of twenty-five hundred dollars if the elective share is equal to or greater than that amount. Such sum, however, is inclusive of any absolute disposition, whether general or specific. Where a trust is created for the life of the surviving spouse, such sum of twenty-five hundred dollars or any lesser amount necessary to make up that sum is payable from the principal of such trust. (G) The provisions of this paragraph with respect to trusts with income payable for the life of the surviving spouse likewise apply to a legal life estate, to an annuity for life or to any other disposition in the will by which income is payable for the life of the surviving spouse. In computing the value of the dispositions in the will, the capital value of the fund or other property producing the income shall be taken and not the value of the life estate. (H) The grant of authority in a will to a fiduciary or his successor…”

In order to understand the provisions providing for the rights of any interested person over the estate in cases of estate litigation, will contest, and the likes, consult with a legal expert. Stephen Bilkis & Associates, with offices throughout New York, is a legal firm whose team such as the Kings County Estate Administration Lawyers, and its New York Probate Attorneys, can help you understand the legal processes involved in such actions.

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