Published on:

Decedent’s Widow Seeks to Revoke Preliminary Letters Testimentary


A New York Probate Lawyer said that, in the pending probate proceeding, the decedent’s widow has sought to revoke the preliminary letters testamentary issued to the decedent’s sisters, the nominated executrices under the will, and to disqualify the sisters from appointment as executrices. The sisters have questioned the status of the widow and have sought a construction of the decedent’s will. The widow has cross-moved for summary judgment and for an accounting. The parties are also disputing the ownership of the contents of the decedent’s safe deposit box. A hearing was held with respect to the issues of the widow’s status and the ownership of the safe deposit box contents.

A New York Will Lawyer said that, the decedent died on May 20, 1980, at eighty years of age. He left a will, dated January 19, 1973, which has been offered for probate. The decedent’s will provides a bequest to his wife, of “all my furniture, furnishings, automobiles and all my other household goods and effects.” The will then give a $2,500 legacy to the decedent’s brother, and gives all of the decedent’s “jewelry and articles of personal adornment”, in equal shares, to the decedent’s sisters. The will then provide as follows: “SIXTH: I give and bequeath to my wife, if she survives me, such part of my estate as my wife would have received had I died intestate domiciled in the State of New York. In the event that my wife, shall die with me in a common accident or disaster, or under such circumstances as to make it impossible or difficult to determine which of us died first, or within sixty (60) days after my death, I direct that my wife shall be conclusively deemed not to have survived me. “SEVENTH: In the event that my wife, shall predecease me, or shall be deemed not to have survived me in accordance with the provisions of paragraph “Sixth”, all property, of all kinds, wherever situated, belonging to me at the time of my death, shall pass in accordance with the provisions of paragraph “Eighth”. “EIGHTH: All the rest, residue and remainder of the property which I own at my death I devise and bequeath to my sisters, or the survivor. If neither of said sisters of mine shall survive me, I devise and bequeath my residuary estate to my brother.”

A Westchester County Probate Lawyer said that, the decedent’s two sisters are named as executrixes under Article NINTH of the will. The proof adduced at the hearing established the following facts concerning the status of the decedent’s wife who claims to be the decedent’s widow. The decedent married his wife on September 10, 1963 in Greenwich, Connecticut and a valid marriage certificate is in evidence. The decedent and his wife lived together as husband and wife continuously from the date of their marriage until the decedent’s death in 1980. The decedent had been married twice before. The second marriage ended with the death of the wife in 1960. The first marriage terminated by divorce decree dated January 18, 1943 issued by the Supreme Court, County and State of New York which provided that:
Defendant [the husband-our decedent] is forbidden to marry any person other than plaintiff [the first wife] during the life time of the plaintiff except by express permission of the court.” There is no evidence of any such permission having been obtained by decedent at any time with respect to his later second or third marriages. The decedent had a son with his first wife who lived with the first wife, his mother, after the divorce, and who was adopted by his stepfather in 1959 when the son was an adult.

A Suffolk County Probate Lawyers said that, the decedent’s sisters contend that the wife is statutorily excluded from the definition of “spouse” under EPTL 5-1.2, subd. (a), par (2) in that her marriage to decedent was a “prohibited” remarriage under Section 8 of the Domestic Relations Law in effect at the time of the marriage in 1963. Section 8 of the Domestic Relations Law was amended in 1968 to permit remarriages without court permission. Nevertheless, the court need not consider the effect of the statute, since it is clear to the court that the marriage took place in Connecticut. The marriage certificate clearly establishes that fact. The courts have held that the prohibition in a decree of divorce such as the one quoted above was penal in character and had no extra-territorial effect.

A New York Estate Administration Lawyer said that, the testimony and all of the documentary evidence clearly proves that the decedent’s wife is the surviving spouse of the decedent herein. The decedent’s sister testified that she attended the wedding reception of the decedent and Josephine. The Social Security Administration has recognized her as decedent’s wife, as has the insurance company which insured the decedent’s life. The decedent and his wife filed joint income tax returns as well. It is clear that the decedent and his wife resided together and held themselves out as husband and wife continuously for seventeen years since their marriage in 1963 until the decedent died in 1980.

The issue in this case is whether the wife is a lawful heir to the estate of the decedent.
The construction question presented by the decedent’s will concerns the meaning of Article SIXTH thereof which is quoted in full hereinabove, in which the decedent states, in part, that: “I give and bequeath to my wife, if she survives me, such part of my estate as my wife would have received had I died intestate in the State of New York.” The sisters argue that the decedent intended to give his wife an elective share, or, in the alternative, that the share of the wife should be determined as in the case of a decedent survived by a spouse and a child, and without regard to the 1959 adoption of the decedent’s son by his stepfather.

The sisters assert that parol evidence as to the decedent’s intent should be admissible. Aside from the fact that the recollection and notes of the attorney-draftsman do not shed light on the decedent’s intent, the language of the will does not permit resort to extrinsic evidence. In one case supra, the decedent-husband gave his wife certain real property and cash and “in addition such a portion of my estate which will in the aggregate equal the amount in property or cash which my wife would have been entitled to receive, had I died intestate. It being my intention that my said wife shall receive no more and no less than the proportion of my estate which the laws of the State of New York compel me to give, devise and bequeath unto her as my surviving spouse.”

The Appellate Division, Third Department, stated: “We disagree with the Surrogate’s determination that it was testator’s intention to give to his widow one third of his estate–the share she would have been entitled to had she elected to take against the will under section 18 of the Decedent Estate Law in effect at the time of his death. The will clearly give one half of the estate to the widow by providing in clear and unambiguous language: ‘I give the amount in property or cash which my wife would have been entitled to receive, had I died intestate’ as section 83 of the Decedent Estate Law, in effect at the time of the testator’s death provided that one half of the net estate before taxes should pass to a widow where there was one child; and the will affords no basis for implying an election, which is a voluntary and personal act.”
In consideration of the above cases and upon reflection with respect to the language of the decedent’s will as a whole, the court determines that Josephine, the widow herein, is entitled to receive a full intestate share of this estate, and not only an elective share thereof. The court must further consider whether the intestate share is to be determined as if the decedent were survived by a widow and a son or whether the adoption of the son by his stepfather eliminated him as a distributee of the decedent.

The decedent’s son was adopted in 1959, when he was an adult, by his stepfather, who was the husband of his mother, the decedent’s first wife. The sealed records of the Surrogate’s Court of Bronx County so indicate for purposes of this finding. It is clear to the court that the law in effect at the decedent’s death determines who his distributees are. Pursuant to the Domestic Relations Law, Section 117, and the foregoing cases, the rights of the decedent’s son to inherit from the decedent, his natural father, terminated upon the making of an order of adoption in 1959.

Accordingly, the decedent’s widow was his sole distributee on his death and entitled to the entire estate, after payment of the pre-residuary legacies and bequests of personal property provided for in Articles Third, Fourth, and Fifth of the decedent’s will.

The next issue to be determined by the court concerns the ownership of the contents of the decedent’s safe deposit box which consisted of traveler’s checks and cash totaling approximately $10,000.00 and items of both feminine and masculine jewelry as set forth in an inventory prepared by the State Tax Commission.

The widow has failed to prove that any of the traveler’s checks or cash belonged to her. Nevertheless, the traveler’s checks and cash will be part of the decedent’s estate and pass to the widow in accordance with the construction of the will discussed hereinabove.
The preliminary executrices, the decedent’s sisters, are currently serving pursuant to the order of the court and they have posted a substantial bond in an amount fixed by the court to cover the full value of the decedent’s assets which consist mainly of real property. The widow has moved to disqualify the sisters from acting as executrices and has sought to revoke their preliminary letters and the widow also seeks an accounting from them. The court determines that all of these issues raised by the widow should properly be determined in an accounting proceeding by the preliminary executrices. Accordingly, the preliminary executrices are directed to account within 30 days from service upon them of an order to account. The will shall be admitted to probate, it having been proved to the court’s satisfaction, but the appointment of fiduciaries to act under full letters shall await the accounting proceeding as shall all other issues raised by the widow with respect to removal and/or surcharge of the preliminary executrices.

The parties are directed to submit a decree on notice admitting the will to probate and construing the will in accordance with the foregoing decision and are further directed to submit an order to account on notice in accordance with the foregoing decision. The preliminary executrices shall continue to make monthly payments of $2,000.00 to the widow as provided in a former order of this court until further order of the court. The preliminary executric are urged to consider making distribution of the assets of this estate to the widow as soon as may be practicable or pursuant to an order with respect to the distribution upon proper motion.
Accordingly, the motion to strike the appearance and objections of the wife in the probate proceeding is denied in all respects.

If you want to question the probate of a will, seek the help of a New York Will Contest Attorney and New York Probate Attorney at Stephen Bilkis and Associates. Call us now.

Contact Information