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Court Looks at Disposition of Decedent’s Gifts


The Facts of the Case:

On 19 December 1947, a woman died. She was a resident of the Village of Millbrook, Dutchess County, New York. On 18 February 1948, her last Will and Testament was duly admitted to probate by decree of the Dutchess County Surrogate. Under the said will, after making certain specific devises, the testatrix, in paragraphs Fifth and Sixth of her said will, provided that:

Fifth: “I give, bequeath and devise to my executors hereinafter named all the rest, residue and remainder of my property including my house on Elm Drive, Millbrook, N. Y., to be held by them in trust for my brother, Pleasant Valley, N. Y., they to invest and reinvest the same and pay the income therefrom to him for as long as he lives. A New York Probate Lawyer said a portion of the principal may also be used for the support and maintenance of my said brother if deemed necessary in the sole judgment of my said executors and trustees.”

Sixth: “After the death of my said brother, I give, bequeath and devise all my property then remaining, both real and personal, to woman-one of Pine Plains, N. Y., and the said woman-two of Kingston, N. Y., share and share alike.”

Undoubtedly, under the said will, a trust was made in favor of the brother of the testatrix, and that after the brother’s death, all property of the testatrix then remaining, both real and personal, are bequeathed and devised to two other named individuals, the trustees. However, on 5 September 1964, one of the two residuary legatees named in the said Will, woman-one, predeceased the brother of the testatrix who is the beneficiary of the trust.

The aforementioned specific parts of the will are now the questions in the herein case that must be resolved by the court.

The Issues of the Case:

What happens to the remainder interest created in the said will? Does the remainder interest created pass to the legal representative of the residuary legatee, woman-one, who predeceased the beneficiary of the trust? Nassau County Probate Lawyers said if not, does it pass to the other remainder man? If not, does it lapse and become covered by the rules on intestacy instead?

The Ruling of the Court:

In New York, the general rule is that a gift of a remainder to named persons indicates an intention to give an indefeasibly vested interest.

Courts have, on various occasions with facts similar to the instant case, held that:

First, the court considers it determinative that no condition of survival is present in the paragraph and construes the provision as creating vested interests in the remainder men named in such paragraph.

Second, Long Island Probate Lawyers said the gift of a remainder nominatim indicates an intention to give a vested interest.

Third, the fact that the gifts to the remainder men are included in a residuary bequest without provision for disposition of failed gifts is a further indication that the interests of the remainder men are vested.

And lastly, such holding also results in a salutary avoidance of intestacy.

Clearly, the aforesaid holding of the court is in accord with the generally accepted rules of construction and represents the rule in New York. For an excellent and thorough consideration of the rules, several cases have also been considered by the court for its reference.

In the case at bar, the language of the Will has clearly created and indefeasibly vested one-half of the remainder of the estate to woman-one, the residuary legatee who predeceased the beneficiary, which is not divested upon her failure to survive the life of the said beneficiary. Thus, her right to the inheritance should pass to her legal representative while the other one-half should pass to the other surviving residuary legatee, woman-two.

Last Wills and Testaments are subject to probate proceedings and several questions may thereafter arise as to who are entitled to inherit; or, like in the aforesaid case, the right of representation. For assistance or advice on similar matters, contact us at Stephen Bilkis & Associates. We have the best and the brightest Kings County Probate Lawyers who may help you with your legal concerns. Consult with our Kings County Estate Litigation Lawyers, and the like.

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