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Husband Files Objection to Wive’s Donation to Chartities


In this Estate Litigation action, the will of the testatrix bequeathed her husband a general legacy of $2,500 and named him as income beneficiary of a trust of one-half of the residuary estate. The remaindermen of this trust are charities as also are the legatees of the remaining one-half of the residuary estate. The husband filed objections to the probate of the will and challenged the bequests to charities as violative of Decedent Estate Law, § 17.

A New York Probate Lawyer said that negotiations between the husband and the charities resulted in an agreement by the terms of which the husband withdrew his objections to probate, consented to the admission of the will to probate and renounced and released any and all rights granted to him by Decedent Estate Law, § 17. Five charitable organizations agreed, in the same instrument of settlement, that immediately upon the issuance of letters testamentary the executrix would pay to the husband the sum of $26,000. The agreement stated that ‘except as in this stipulation and agreement provided, all of the provisions of aforesaid Will shall remain in full force and effect’.

The executrix now is accounting and has computed the amount of the husband’s trust in compliance with the provisions of the will and has deducted the $26,000 payment to the husband from the share of the residuary estate which, under the will, is payable to charities. IA New York Will Lawyer said certain of the latter have objected to this allocation of the settlement figure and they assert that the payment to the husband under the settlement agreement should have been deducted, in the manner of an administration expense, from the full residuary estate prior to the computation of the amount of the residuary trust.

A Nassau County Probate Lawyer said the allocation for which the objecting charities contend would result in an equal apportionment of the settlement figure between the husband’s trust and the charities and the effect would be that the husband would be contributing, through loss of income, to the amount which he received in settlement of the contest. While an agreement of such type could have been reached, it certainly is not spelled out in the settlement stipulation and the settlement stipulation cannot be so construed by inference.

The construction urged by the objectants fails to give effect to that portion of the stipulation which provides that the terms of the will shall remain effective. The conclusion must be reached that the charities, as principal beneficiaries under the will, considered it to their financial advantage to avoid both a contest of the will and a determination as to the applicability of Decedent Estate Law, § 17 and, accordingly, they bought their peace from the funds bequeathed to them.

Another issue arises by reason of the rejection by the executrix of the claim of a surgeon who rendered services to the testatrix. The reasonable value of these services is not in dispute and the sole question is whether the liability therefor is that of the estate or of the decedent’s husband.

While the general rule is that a husband is liable for medical expenses incurred during his wife’s last illness, such obligation exists only to the extent that the expenses are commensurate with the means of the husband and such liability may be assumed by the wife in her lifetime. In the instant case the decedent was a woman of some means while the husband’s resources were comparatively small and his income was limited. A Staten Island Probate Lawyer said the fact that is most decisive is that the testatrix not only contracted for the doctor’s services but personally paid other bills incurred during her illness. The facts bring the instant situation squarely within the Totten case and, accordingly, the claim is allowed against the estate.

In another case, a motion to dismiss was filed upon jurisdictional grounds in a proceeding for the probate of an instrument propounded as the last will of the decedent.

A New York Probate lawyer said that the decedent died in June 1961 in New York City leaving a testamentary instrument, drawn and executed in this city and naming a New York County resident as executor and a New York County resident as sole beneficiary. The instrument is limited in its application to property in the United States and not only is the nominated executor a resident of this county but the alternate executor is a New York banking corporation.

The decedent left a very substantial body of property in this county in the forms of a bank deposit, securities and cash with a brokerage firm and tangible personalty. The decedent’s creditors in this state are said to have claims in the neighborhood of a half million dollars. Facts which are of controlling importance on this motion are that the decedent explicitly directed in the propounded instrument that it be offered for probate in this court and that the validity and construction of the instrument be governed by the laws of the State of New York.

The motion to dismiss is made upon the basis that the decedent was a resident of Peru and, under the laws of that country, certain relatives of the decedent may assert rights of inheritance which are not provided by the laws of New York. There can be no question as to the absolute right of this court to exercise jurisdiction in this proceeding and, in recognition of this, the motion is directed to the discretion of the court. It seems that in view of the explicit desires of the decedent, coupled with the existence of New York assets and New York creditors, the naming of a New York executor and a New York beneficiary, very little is left to the exercise of discretion and a refusal to retain jurisdiction would constitute a clear abuse of discretion.

This is not an appropriate time to express an opinion as to the operative effect of the decedent’s direction that New York law govern the disposition of his American assets but, if for any reason the law of Peru should be controlling, this would not be the first instance in which foreign law has been applied in the administration of estates in this court. Admittedly, the movant desires to avoid the ruling in a case, and, for this reason alone, a dismissal of the proceeding could be construed as a repudiation by this court of a decision which is controlling upon it. Upon all the facts there appears to be no equitable reason for thwarting the expressed wishes of the decedent and any such action would unduly complicate the administration of the estate, occasion unwarranted expense to interested parties and even work injustice.

Probate of a will is the important process in order for the provisions in a will to be effective. In case of probate of a will, you can refer that case to our New York Probate attorneys here in Stephen Bilkis and Associates. For other matters, consult our New York Estate lawyers now and receive a reliable advice.

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