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Ex-Wife Contests Deceased Husband’s Will


A man and wife were married and had three sons. One of the sons had a disability that required lifetime care. The couple divorced in 1985 and the man was ordered to pay support of $100 weekly. The man failed to pay support and the woman obtained a judgment for $7,000 in support arrears. The couple remarried in 1986 but divorced again in 1988. The man was ordered to pay support of $60 weekly. Again he incurred arrearages. In the second divorce decree, the man and his first wife agreed that the first wife and their disabled son will live in the house rent-free until their death.

The man married another woman with whom he had a daughter. When the man died, he left an estate comprising of an interest in a house co-owned by him and his ex-wife. His ex-wife owned the other half interest in the house. He left his entire estate to his minor child from his second marriage and appointed his second wife as executrix of his estate. His second wife succeeded in having her husband’s will admitted into probate and she was issued letters testamentary as executrix of her husband’s will.

The first wife died before the husband. In her will, she gave her disabled son a life interest in her half of the house. And when her disabled son dies, her half interest in the house will go to her two remaining sons.

Upon the death of the husband, a New York Probate Lawyer said the estate of the ex-wife presented a claim for unpaid support. The executrix of the estate of the deceased husband presented a claim for unpaid rent. Before the court, in order to settle the issue, the estate of the husband agreed to sell the half interest of the husband to his sons from the first marriage.

Evidence was introduced that the house’s value was $155,000. The second wife who was the executrix of the man’s estate agreed to sell the half interest of her husband to his sons from the first marriage for the amount of $70,000.00. The son from the first marriage agreed to send a check for that amount.

The check was issued in the name of the second wife. NY Probate Lawyers said the lawyer for the second wife refused to accept the check payment because it was not in his name as they had agreed upon in court. The son paid the check directly to the second wife who deposited it into her own personal account instead of depositing it in court as it is an asset of the estate which belonged to the minor child of the man with his second wife who was bequeathed the entirety of her deceased father’s estate.

The second wife now wants to void the stipulated settlement and she wishes to reinstate all her claims for unpaid rent on the house.

The only question in this part of the appeal is whether or not the second wife’s action to vacate the court settlement can be given due course. The guardian for the minor child who was her father’s sole heir filed a motion for contempt against the second wife of the man.

According to Westchester County Probate Lawyers, the Supreme Court ruled that the court settlement is binding and that the second wife’s actions in taking money belonging to the estate and depositing it into her account was full acceptance of the settlement paid by the sons from the first marriage.

First, the court settlement was binding. The court inquired of the second wife whether she heard the terms of the stipulation and she said that she did. She was asked if she agreed with the stipulation and she said that she agreed with it. She was asked by the judge if her agreement is of her own free will and she said that it was. The court then asked if any force or duress was exerted on her to obtain her consent and she said no.

From all this, the Court ruled that the court settlement was a valid and binding agreement between the two estates ( the estate of the husband and the estate of the wife).

It is clear then that the check which the second wife obtained from the estate of the first wife was the payment called for in the settlement. The check belonged to the estate of her husband and should be distributed to their minor child.

Her act in depositing the amount into her account was a violation of her duty as fiduciary of her husband’s estate. It was an act that violated the trust reposed on her by the court and by the estate to gather the properties and assets of the estate for the benefit of the beneficiary, the minor child. But her acceptance of the sum and that she has used it in support of their minor child is evidence that she has no longer any right to vacate the settlement she had already benefited from.

Executors are bound by a duty to advance the interest of the estate they are called to administer. If they fail in this duty, those beneficiaries of the will may file an action against the executor of the will. In doing this, you will need the service of an attorney who can present facts evidencing the failure and disqualification of the testator. Call Stephen Bilkis today for advice and a free consultation.

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