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Decedent’s Son Sues for Specific Performance


A man and his male domestic life partner were co-owners of a cooperative apartment in Brooklyn, New York. They also co-owned a house in Southold, New York.

In his last will and testament, the man named his domestic life partner as his executor. He also left to him his share in the proprietary lease of the Brooklyn apartment and shares of stock. The man also gave cash gifts to his nephews amounting to $10,000 each.

The domestic life partner presented his the will for probate. The sons of the testator appeared during the probate proceedings but signed waivers signifying that they were waiving all objections they may have in the will. The will was admitted into probate in 2001 and letters testamentary were given to the testator’s domestic life partner.

In 2006, the domestic life partner of the testator sold the Brooklyn lease and the house in Southold, New York. A New York Probate Lawyer said the two sons of the testator filed an ordinary civil suit for specific performance: that is, they asked the civil court to order the domestic life partner of their father and the executor of their father’s estate to give to them half of the proceeds of the sale of the Brooklyn lease and the house in Southold, New York.

The sons contend that in the presence of their father, the testator, their father’s domestic life partner and estate executor promised and agreed to cede half of the proceeds of the sale of their father’s estate properties if they do not object to the probate of his will. The sons claim that this is the only reason why they signed the waivers and appeared but did not object in the probate proceedings of their father’s will. They also ask for the payment of damages for the executor’s breach of contract when he failed and refused to give them their share in their father’s estate. They also claim that their father’s executor defrauded them when he induced them to sign the waivers knowing full well that he never intended to share with them the proceeds of their father’s estate.

The executor of their father’s estate and his domestic life partner filed a motion asking for a dismissal of the civil suit filed by the sons of his life partner. Suffolk County Probate Lawyers said first, the executor raised the issue of lack of jurisdiction: the surrogate court and not an ordinary civil court has jurisdiction over the action for proceeds of an estate. Second, the executor claims that this suit is barred by the Statute of Frauds as they are trying to enforce an oral contract over the sale of real property when the law prohibits real property from being the subject of oral contracts. Third, even if there were an oral contract, such cannot be valid because there was no consideration: he posits that the sons’ failure or refusal to contest the will may also be attributed to the fact that there was no valid ground by which they can contest the probate of their father’s will. Fourth, the lease on the Brooklyn apartment and the house in Southold were co-owned by the executor and the testator and they have to basis for their claim of ownership over half of those properties as these were properties of the estate that have been distributed in proceedings which were terminated in 2001. Fifth, the sons of the testator have only now raised the issue of undue influence and fraud allegedly exerted by him over their father: this issue should have been raised in the surrogate’s court during the probate proceeding and cannot now be countenanced since it is a re-litigation of an issue that has been laid to rest five years before.

The Court ruled that the issue is one where it is tasked to determine whether the complaint should be dismissed for failure to state a cause of action; where it is tasked to determine whether the sons are barred from litigating a claim which has already been litigated.

The Court held that in both the Brooklyn apartment and the house in Southold, the testator and the executor as domestic life partners were joint tenants with the right of survivorship (meaning that should one of the join tenants die ahead of the other, the surviving tenant shall own the tenancy all on his own). Also, the ownership over the two properties passed on to the testator by operation of law because of the survivorship clause in the lease and the joint-ownership title over the house. A Staten Island Probate Lawyer said that during the lifetime of the testator, he could have changed the provisions of his will: he could have given his sons his share or half of his share in the lease and the house, but he did not. And in the probate proceedings where the issue of his capacity to make changes to his will should have been raised, the sons did not object.

The Court dismissed the complaint.

Are you an immediate relative who was left out of a will like the sons of the testator here? Are you thinking of contesting the will? A New York Will Contest Lawyer will tell you that you should not delay; you should file an objection while the will is under probate. At Stephen Bilkis and Associates, their legal team is willing to help you gather facts and present evidence that shows the lack of testamentary capacity of the testator. Call Stephen Bilkis and Associates today and do not sleep on your rights.

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