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Court Decides Whether Codicil Revives Will

In this estate case, the question for the determination of the Court is whether the codicil of March 8, 1956 revived the will of November 23, 1954 and a codicil thereto of December 20, 1954 which had been revoked by the will of July 31, 1955.

The proof adduced establishes that the propounded instruments were executed by decedent and subscribing witnesses in accordance with statutory requirements. The republication of decedent’s 1954 will by the 1956 codicil operated as a revocation of the will dated July 31, 1955. The absence of a revocation clause in the 1956 codicil does not change the result.

The Court holds that decedent validly revoked the instrument dated July 31, 1955 and reexecuted and republished the propounded instruments bearing dates November 23, 1954 and December 20, 1954 by the codicil dated March 8, 1956, and that at the time the decedent was of sound mind, fully competent to make a will and under no restraint. probate of the will of November 23, 1954 and the codicils of December 20, 1954 and March 8, 1956 is decreed. Proceed accordingly.n an action to invalidate two deeds and two general releases and to recover damages grounded on fraud and forgery, the plaintiff appeals from an order of the Supreme Court, Kings County, dated April 7, 1987, which, after a nonjury trial directed that judgment be entered in favor of the defendant.

In an action to invalidate two deeds and two general releases and to recover damages grounded on fraud and forgery, the plaintiff appeals from an order of the Supreme Court, Kings County, dated April 7, 1987, which, after a nonjury trial directed that judgment be entered in favor of the defendant.

In another estate case, the plaintiff commenced this action against her sister, the defendant, to cancel and set aside two deeds and two releases in connection with the estate of their father, who died in 1976. When the father’s will was submitted for probate, the plaintiff filed objections. She ultimately withdrew her objections as part of a settlement on the record by the terms of which plaintiff was paid the sum of $5,350, in addition to a $10,000 legacy and executed a general release in favor of the defendant, among others.

The plaintiff subsequently commenced this action in the Supreme Court, Kings County, seeking to cancel and discharge the aforementioned release, a prior release, and to invalidate two deeds involving the real property formerly owned by her mother and later conveyed by the parties to their father. The Supreme Court, after a nonjury trial, discredited the plaintiff’s “alleged lack of knowledge concerning the property and monies in dispute in this matter and concerning the effect of the general release issued by her in the Surrogate’s Court” and directed that judgment be entered in favor of the defendant.

“Stipulations of settlement are favored by the courts and not lightly cast aside”. It appears that all the allegations raised in the Supreme Court were before the Surrogate’s Court and were encompassed in the settlement. “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation”

Although the trial Court erred in limiting testimony pertaining to the facts and circumstances surrounding the execution of the general release and settlement of the action, this ruling was of no consequence because even assuming the allegations in the complaint concerning the Surrogate’s Court stipulation of settlement to be true, the plaintiff failed, as a matter of law, to raise a ground warranting invalidation of the settlement. The sole claim was that the plaintiff was unaware of the extent and nature of her father’s assets. However, in her testimony before the Supreme Court, she admitted that she was present at the reading of her father’s will, and there was no allegation that the defendant affirmatively misrepresented the assets of the estate. Moreover, the record reveals that the plaintiff’s counsel voluntarily withdrew his request to call as a witness at trial the attorney who represented the plaintiff in the Surrogate’s Court.

In addition, we agree with the Supreme Court that the challenge to the general release issued in the Surrogate’s Court was undermined by the fact that the plaintiff is a mature, college-educated professional who lived with or near her father most of his life and who was fully represented by counsel in the Surrogate’s Court.

For quality legal services, you can consult Stephen Bilkis and Associates, we are here to serve you. For cases involving a last will and testament for allowance, you can ask an advice from our Kings County Probate Attorneys.

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