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Matter of Bonnano


2017 NY Slip Op 04436

June 7, 2017


Giovanna Bajic and Angela Franke petitioned the probate court via SCPA 1420 for a will construction issue. They are appealing for an Order and Decree by the Queens County Surrogate Court, dated March 30, 2016. This court had denied their Motion for Summary Judgement and Petition.

A New York Estate Lawyer explained that the decedent that this case involves passed on in 2002, leaving a will for her 4 children. In the will, the decedent left real property in Queens to her children. In her will, she stated that she didn’t want the property sold during the time that any of her children were still single and unmarried, or if they were currently living on the property. When all the children had either left the family home and/or had married, then the property could be sold.

Two of the daughters petitioned the court pursuant to SCPA 1420 to challenge the construction of the will. They sought interpretation of several portions of the will, one of which dealt with not being able to sell the property while any of the children were unmarried. They believed this provision was invalid. Rather, they contended that each sibling owned ¼ share of the property in a fee simple, absolute basis as tenants in common. The petition moved for a summary judgment. The Surrogate Court denied this motion and petition (51 Misc 3d 629 [Surrogate Court, Queens County].

The court said that the purpose of a proceeding for will construction is to ascertain the mindset, or the intention of the testator (Matter of Bernstein 40 AD3d 1086; Matter of Levine 136 AD3d 920, Matter of Lynch 113 AD3d 616, 617). Any rule of thumb used in interpreting a will must be guided by the intent of the testator. This is true, provided that it also is in keeping with public policy and the law (Matter of Brignole 32 AD3d 538). The court said that to do this, a sympathetic reading of the will is required, in its entirety. It must also be kept in mind that all the facts and circumstances surrounding the case (Matter of Cincotta 106 AD3d 998), Matter of Levitan 134 AD3d 716, Matter of Levine 136 AD3d 921.

The Surrogate Court was correct in their initial ruling. The testator’s intent was clear in that she wanted to provide a home for her children until they were all married, and they had moved on. This provision didn’t impose unreasonable restraints on the property (Rasch v Dolan New York Law & Prac.t of Real Property 9:10 [2d ed. June 2016 update).  This court feels that the will provision also didn’t violate any social policy regarding restraints on marriage. The remaining contentions were without merit.

The Petitioners didn’t make a prima facie case for the entitled of judgment. The Surrogate Court was proper in denying their motion and petition for summary judgment.

Many New York Estate Lawyers feel that seeking the interpretation of a will isn’t unusual. Often an executor will come across a will that can be interpreted several different ways. It is then up to the court to do so, taking into account the intent of the decedent, public policy, and the applicable law. It is important that the will and the wishes of the decedent will be honored if possible. From a legal perspective, not following the will correctly can expose the executor to personal liability.

If you or a loved one has a will construction issue, it is important to seek legal guidance. Speak to an experienced estate laywer from our office for guidance.


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