In this probate proceeding the court had to address an issue related to the construction of terms in the will related to the restriction on the disposition of real estate.
Decedent M. Bonanno died in 2002, leaving a last will and testament dated August 1, 1983. The Surrogate’s Court admitted the will to probate. The will provided that specific real estate that she owned in Queens go to her 4 children, and that it not be sold while her children remained single, and while any of them still lived in the property. It also stated that when the property was sold, the proceeds would be divided equally among her four children. Two of the decedent’s children petitioned the court for a construction of the provisions of the will related to the real property. They sought an order stating that each of 4 sibling owns a ¼ share of the property in fee simple without restriction. After filing the petition, the petitioners also filed a motion of summary judgment on the petition. The Surrogate’s Court denied the motion and the petitioners appealed.
In a summary judgment motion, the moving party has the burden of making a prima facie showing that based on the undisputed material facts, he or she is entitled to judgment as a matter of law. If the moving party is able to do this, then the burden shifts to the opposing party to rebut the moving party’s motion and show that there are material facts in dispute.