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Claimant Brings Suit Based on Oral Promise by Decedent


A New York Probate Lawyer said that, this is an application by the preliminary executors in a probate proceeding to dismiss a claim asserted against the estate. This claim to one-half of the estate was made by the claimant simultaneously with his opposition to a decree approving a compromise agreement which would dispose of a heavily litigated protracted will contest. Under several wills of the decedent, including this last will, he would be entitled to a $20,000 legacy. The claim is based on an alleged oral promise by the decedent to make a will which would give to the claimant one-half of the residuary estate in consideration of the claimant’s conveyance to the decedent of a one-half interest in a house on Fire Island. This house was sold on January 7, 1973 for $47,000. The claimant asserts that his interest in the estate is upwards of $500,000.
A New York Will Contest Lawyer said that, a bill of particulars served in support of the claim alleges that the agreement was partly oral and partly in writing. The writing is a will dated January 18, 1965 which was revoked by a later will. There were several later wills, and deeds affecting the Fire Island property. The first deed made on February 2, 1963 was given to the claimant as grantee by the decedent as grantor. That deed reserved to the decedent a life estate. The next deed dated January 16, 1965 was executed by the claimant, creating a joint tenancy with right of survivorship in himself and the decedent. The third deed is from the joint tenants as grantors to the decedent as grantee. The will relied upon by the claimant bequeaths to him one-half of the residuary estate after bequests of tangible personal property and eight general legacies of $5,000 each and another bequest relating to stock in a closed corporation.
The issue in this case is whether the claim should be dismissed on the ground that the claim is not maintainable because it is barred by the statute of frauds.

This application seeks to dismiss the claim pursuant to CPLR section 3211(a) (5) on the ground that the claim is not maintainable because it is barred by the statute of frauds. The court will treat this motion as a proceeding pursuant to SCPA 1809, namely as a proceeding by the fiduciary to determine the validity and enforceability of this claim. In such a proceeding the court may determine the claim and all issues relating thereto and make such direction as justice shall require.

A New York Will Lawyer said all parties to the probate proceeding have joined the preliminary executor in urging the dismissal of this claim. A preliminary executor pursuant to SCPA 1412 is conferred with all the powers and authority contained in the instrument offered for probate. The preliminary executor is cloaked with authority to bring this proceeding, and the court may on this motion consider the validity of the claim.

A Queens Probate Attorney said it is the claimant’s argument that he is entitled to a trial of the issues and that his transfer of his interest in the real property on Fire Island supported by the will of January 1965 which devises the residuary estate to him constitutes a memorandum sufficient to satisfy the statutory requirement of the statute of frauds. EPTL 13–2.1 reads: ‘Agreements involving a contract to make a testamentary provision of any kind required to be in writing: (a) Every agreement, promise or undertaking is unenforceable unless it or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, if such agreement, promise or undertaking. Is a contract to make a testamentary provision of any kind.’ He indicates that the existence of a valid contract must be proven by the party claiming such an agreement and that the requisite elements for establishing such a contract must necessarily be shown. Consideration and a meeting of the minds should be present to prevent against the possible enforcement of a fraud. The evidence to prove such a contract must be clear and convincing. Professor says, ‘Whether or not a will itself is sufficient evidence to satisfy the statute of frauds for testamentary dispositions will depend on whether or not the contract is clearly recited in the will, thereby leaving nothing for extraneous evidence.’ The January, 1956 will contain no reference of such a contract.

It would seem that the claimant relies on the will of January 1965 as the memorandum sufficient to satisfy the statute. A Long Island Probate Attorney said as indicated above, this will was revoked by a later instrument and as a matter of fact there were several intervening instruments made since that will and before the will offered for probate. It appears that the claimant is attempting to establish an oral contract to make a will and relies on his performance in pursuance thereof to take the case out of the statute of frauds. The cases have indicated that not all present performances will be equitably enforced in a contract to make a will. Mere action without reference to the alleged oral agreement is in most instances not that performance required to take the agreement out of the operation of the statute.

Accordingly, the court held that the claim is dismissed.

If you have a claim against the estate, seek the representation of a New York Estate Litigation Attorney and New York Probate Attorney at Stephen Bilkis and Associates.

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