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In re the Estate of Wilder, 49 Misc. 3d 1044 (N.Y. Sur. Ct. 2015)


Jane A. Wilder died on July 31, 2014, a resident of New Hyde Park. She was survived by one daughter, Nancy Cave, as well as Nancy’s 3 children. Under the terms of Jane’s January 17, 2014 will, the decedent bequeathed her real estate, as well as her residuary estate, in equal shares to three grandchildren: Scott Cave, John Thomas Cave, and Jessica Cave. The will names Scott Cave as executor and John Thomas Cave and Jessica Cave as successor co-executors.

Scott Cave filed a petition for probate on September 9, 2014. Preliminary letters issued to him on September 15, 2014. The petition for probate lists as estate property the real property located at 1618 Falmouth Avenue, New Hyde Park, New York (the Falmouth Avenue property).

In response, Nancy filed a motion asking the court to issue an order (1) declaring that the Falmouth Property is not part of the estate of Jane A. Wilder; and (2) directing  the to amend his petition for probate to remove any reference to the Falmouth Property, and to decrease the total value of the estate accordingly.

Scott responded to Nancy by filing a cross motion seeking an order for a preliminary injunction, enjoining Nancy from selling, transferring, conveying, disposing, encumbering, or altering the Falmouth Property  and requiring Nancy to turn over to Scott the keys to the Falmouth Property and giving him full access.


After reviewing the language in the trust and other evidence, the court finds that although the interest of Thomas Frank Wilder in the trust became vested upon creation of the trust, his interest was subject to divestment if two conditions were both met. These conditions were that: (1) the death of Thomas Frank Wilder occur prior to the death of his mother; and (2) Thomas Frank Wilder is survived by issue. If both of these conditions had been met, Thomas Frank Wilder’s interest would have been divested and would have then vested in his surviving issue, per stirpes, although his issue would not have enjoyed their interest until the termination of decedent’s interest (see Matter of Polacco, NYLJ, Jan. 5, 1994 at 24, col 5 [Sur Ct, Nassau County]). However, since Thomas Frank Wilder left no issue surviving, the dual conditions for divestment were not met. The court finds that Thomas Frank Wilder’s vested remainder interest in the trust passed to his estate when he predeceased his mother, leaving no surviving issue.

For the reasons expressed above, the motion of Nancy Cave is granted to the limited extent that the court finds that the Falmouth Avenue property is not part of the estate of Jane A. Wilder but is owned by the trust. At the same time, the court finds that the vested one-half interest of Thomas Frank Wilder in the trust was not divested by his death without issue, and that it therefore became a part of his estate which passed by intestacy to his mother, Jane A. Wilder, during her lifetime, *1057pursuant to EPTL 4-1.1 (a) (4). Upon the death of Jane A. Wilder, the interest became a part of her estate. Accordingly, the court directs Scott Cave to amend his petition for probate to remove any reference to the Falmouth Avenue property, and to replace it with a reference to the interest of the estate of Jane A. Wilder in the trust.

The cross motion of Scott Cave for a preliminary injunction is denied except to the extent that Nancy Cave is enjoined from selling, transferring, conveying, disposing or encumbering decedent’s personal property located in the Falmouth Avenue property, which personalty is part of decedent’s estate.


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