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Court Rules on Ante-Nuptial Agreement – Simms’ Will, In re, 273 N.Y.S.2d 494, 51 Misc.2d 540 (N.Y. Surr. Ct., 1966)


Petitioner Jankowitz is a niece by the half blood of decedent Simms. Jankowitz’s father and Simms were half brothers. Jankowitz and Simms, entered into an antenuptial agreement in 1961 in which Simms agreed to leave her a testamentary gift of $25,000. The two were then married in accordance with the requirements of the rites of the Jewish faith. In January 1962, the marriage was annulled. The matrimonial judgment declaring the marriage void was based on section 5 of New York’s Domestic Relations Law which provides that a marriage between “an uncle and niece” is incestuous and void. However, it does not expressly address whether a marriage by an uncle and niece by the half blood is also incestuous.

The petitioner received alimony. In 1965 Simms died, leaving a will. The petitioner filed an objection to the will because the will did not contain the bequest of the $25,000 agreed to in the antenuptial agreement. The court dismissed her objections saying that she lacked standing since she was not an interested party. In order to have standing to contest a will, you must be an interested party. Typically interested parties would include distributees because they would be entitled to share of the estate in the absence of a will. For example, the surviving spouse would be a distributee, as would the children of the deceased. However, a former spouse would not be a distributee. Other interested parties would include any beneficiary who would have benefited under a prior will. Because the court concluded that the petitioner did not qualify as an interested party, it dismissed her objections.

The petitioner did not give up. In April, 1966, she sought a construction of the will. The court declined to entertain the petition.The petitioner now moves to compel the executors to render and settle their account, asserting that she is a creditor of the estate because of the antenuptial agreement and also because of unpaid alimony.

The executors of Simms’ estate responded to the petitioner by disputing the enforceability of the prenuptial agreement. In addition, they asserted that the alimony was paid. Petitioner responded that she rejected the tender of alimony because it did not include interest.
The court concluded that the petitioner’s filing of the petition to be a sufficient presentation of the claims of which the executor had previous knowledge, and the executors’ answer to the petition to be a sufficient rejection of the claims within section 208–a of the Surrogate’s Court Act. Thus, the court granted the petitioner’s application.

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