On June 28, 1975, the decent died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to an executor of the estate and sole descendant. Prior to the settlement of the affairs, the executor died. This was November 5, 1981. In January 15, 1982, the nephew of the decedent petitioned the court for letters of administration. A New York Probate Lawyer said that the court granted this petition in January 19, 1982.
In January 7, 1983, the petitioner asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.
The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. From the information a Nassau County Probate Lawyer got, the petitioner also asked if these certain stipulations in his mother’s will can be broken. Petitioner expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to a hospital. The hospital at the time of the decedent’s death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital Planning Association, it was said that the the hospital was never created and will never be created.
The decedent, at some point retained a lawyer with regard to the decedent’s estate. The lawyer advised that he could make a petition to determine an excessive gift to charity. This was executed by the Petitioner in March 8, 1978, which is within six months of the petitioner being appointed as executor. The lawyer then notarized and sent the petition via first-class mail, prepaid, properly addressed to the Surrogate’s Court together with a cover letter dated March 8, 1978, requesting the Court Clerk to file the notice of election. The petition however, was never received. The court never knew of it until the petitioner filed this appeal.
The question that the court needed to address first is if an appeal that was executed but not filed be considered as a notice of election to contest a charitable disposition. Should it be treated as such and given effect?
The court then reviewed the terms of the law covering the contest of charitable donation through a will, and they have determined that even if there are no preceding cases the filing should be treated like the spouse’s right of election. The contest should be filed within six months and since twelve months have passed since the letters have been issued then the right no longer exists. A Nassau County Estate Litigation Lawyer said that the court deems this requirement as mandatory and indispensable.
The court could grant relief if the time that has passed is less than twelve months. Any rights that the petitioner had were extinguished with the lapse of the twelve months after the letters were issued. Although the actions of the petitioner would show that he intended to contest the will, the court considered it as unfiled as the law states that the filing with the court is not optional so the mailing is not filing.
This problem would not have happened if full attention was given to the contest when applied. A prudent lawyer would have taken care of it. They would check with the courts if it was received or sent it via courier to make sure it was received by the court clerks.
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