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Court Decides Disposition of Real Estate in Estate Case


This is an application by the surviving spouse of the decedent for an advance payment of her elective share and for an order providing for immediate possession of certain real estate property. By stipulation, the parties provided for payment of $2,500 monthly to the spouse for twelve months, subject to the outcome of a pending appeal of an order regarding her elective share. The question of possession of the Florida property and the additional issue concerning disclosure of the petitioner’s address were submitted for decision.

A New York Probate Lawyer said the man died, survived by his wife and three adult children by a prior marriage. The nominated executor petitioned for probate of an instrument and a codicil. The codicil provides in part that being that the deceased man’s lovely wife likes so very much his home in Florida, and which they both enjoyed so very much together, that she is hereby given at his direction, the right and privilege to live in that house as long as she shall live, or unless she shall marry again. Being that he has been most generous to her, the rights and privilege shall be withdrawn and abrogated if she should make a will contest with its several codicils. These several added codicils are all for her benefit.

A New York Will Lawyer said the spouse filed objections to probate of both the will and codicil. She subsequently filed amended objections along with a cross-petition for probate of an alleged codicil, in the event that the prior documents were admitted to probate. The instrument granted a life estate to the spouse without the inclusion of an in terrorem clause and without any limitation concerning remarriage.

Manhattan Probate Lawyers said the spouse ultimately withdrew her objections and consented to probate of the May 26, 1973 will and September 8, 1982 codicil but reserved the right to petition for probate of the instrument dated July 24, 1984. She thereafter withdrew the petition for probate of the later instrument. The will and September 8, 1982 codicil were admitted to probate by decree and letters testamentary issued to the primary executor. The court’s file does not indicate any property settlement to the spouse in exchange for the withdrawal of the objections to probate or the petition for probate of the 1984 instrument.

In the instant proceeding, the spouse requests a determination that she is entitled to possession of and income from the Florida property. The executor contends that the spouse violated the no-contest provision of the codicil and thereby forfeited her interest in the real property. The residuary beneficiaries of the estate, who would benefit from forfeiture, are on notice of this proceeding.

New York City Probate Lawyers said the first issue to be addressed is whether the spouse violated the in terrorem clause by filing objections to the two instruments which were subsequently admitted to probate. As in any construction proceeding, the court must attempt to ascertain the testator’s intention.

Here, it is apparent that the testator had great affection for his wife and wished her to have the use and enjoyment of the Florida property. At the same time, he wanted to provide for the children of his first marriage. When the testator used the word will contest, did he intend that his wife forfeit her interest in the property if she filed and subsequently withdrew objections to probate prior to trial?

The problem of the interpretation of the words “contest”, “attack”, “oppose” and their equivalents in this context, has been addressed by the courts in New York and other jurisdictions with disparate results.

In some cases it was found that a “contest” meant legal opposition “pressed home to trial”. In others the mere filing of objections constituted a contest and in some cases the critical stage was the withdrawal of objections pursuant to a stipulation of settlement.

Thus, in a related case, the filing of objections was found not to be a contest. In another similar case, an appeal from a probate decree, which appeal was subsequently withdrawn did not amount to a contest. It has been held that the filing of objections subsequently withdrawn is a contest, where the objectant has accomplished his purpose to the extent of taking a portion of the estate pursuant to a compromise and settlement.

In some cases, the filing of objections has resulted in a forfeiture where the objections were withdrawn and the will probated without any compromise agreement.

In New York, the Appellate Division, found that a beneficiary who challenged the validity of a will but subsequently acquiesced in dismissal of the pleadings would have forfeited a bequest but for the failure of the testator to provide a gift over. The Court of Appeals, in affirming the lower court decision did not address this aspect of the case but concluded that forfeiture had not taken place because of the failure of a gift over.

The lower court observed that objections serve as a notice–a caveat that the legatee does not like the will. The contest comes at the other end, when the court and jury are reached and the will is actually put in jeopardy. Racing, regattas, polo, wrestling, boxing, athletics–each is a contest in the act itself. Getting ready for these events is a gesture leading up to the real event. The contest is on when the opportunity is given to the contestant to become a winner.

The language employed in the instant case is similar to that employed in another probate case. The facts are similar in that the gift in question is to a person who is a natural object of the testator’s bounty. A reasonable interpretation of the clause in the instrument before the court is that the testator would not have wanted the filing of objections, subsequently withdrawn, to trigger forfeiture. This is consistent with the general rule that forfeiture clauses must be strictly construed.

The executor points out that Estates, Powers and Trust Law (EPTL 3-3.5) exempts certain conduct from the operation of an in terrorem clause and the filing of objections is not included in the statute. It does not necessarily follow, however, that in every case the filing of objections will result in forfeiture. The exclusion of the filing of objections in EPTL 3-3.5 indicates that the legislature chose not to protect that particular conduct from the operation of an in terrorem clause. Where a testator includes such a provision, the provision is enforceable. Whether or not such an intention is expressed in a particular will must be determined on an individual basis.

The executor does not contend that the spouse forfeited her interest by offering a later instrument for probate. The court notes, however, that where a beneficiary offers a later instrument for probate, with probable cause, there is no forfeiture. In this case, there was never any finding that the later instrument was not valid nor was there proof of an absence of probable cause. For all of the foregoing reasons, the court concludes that the spouse did not forfeit her interest in the property located in Fort Lauderdale, Florida.

The final issue to be addressed is the disclosure of the spouse’s address. The executor had demanded the address of the surviving spouse in a cross motion. However, no prior written demand was made nor does the motion meet the requirements of Civil Practice Law Rules (CPLR 2214). The proper procedure would be for the executor to make a demand pursuant to CPLR 3118 and if the demand is not complied with to move to compel disclosure under CPLR 3124. At this point the court need not address the additional defenses to disclosure which are raised by the spouse.

Accordingly, the court finds that the surviving spouse is entitled to a life estate in the property located in Fort Lauderdale, Florida, with a limitation that it terminates on remarriage. The request for an order directing disclosure of the petitioner’s address is denied without prejudice to a renewed application.

Last will should be respected even if we think otherwise. If you want to fight the people who means harm in your application for will probate, ask for the help of the Nassau County Probate Lawyers together with the Nassau County Will Estate Attorney. You can also ask the legal expertise of the Nassau County Estate Lawyers from Stephen Bilkis and Associates if the need arise.

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