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Court Listens to Probate and Discovery Proceeding


A New York Probate Lawyer said that, before the court are a probate proceeding and a discovery proceeding. The decedent, died on June 14, 2008 a resident of Nassau County, survived by her four adult children. Decedent had been married for fifty (50) years. They divorced in April 2001. At the time of her death, decedent resided in property located at 55 Chestnut Hill, Roslyn, New York.

A New York Will Lawyer said that, these proceedings arise out of the same facts and involve four (4) documents. Decedent and her husband executed a joint will dated December 20, 1993. The joint will provided in relevant part the following: SECOND. Upon the death of one of us, leaving the other of us surviving, the entire estate of the one dying first and all property of which she or he has power of disposal, whether owned jointly or severally, is hereby given to the survivor, upon the condition, however, that whatever remains of the above estate after the death of the survivor shall be given as set forth herein Paragraph Fourth hereof. Paragraph FOURTH created a trust for the benefit of the testator’s grandchildren and an outright bequest. The will further provided: FIFTH: We have mutually agreed upon the foregoing disposition of our property, and, in consideration thereof, it is further mutually agreed by both of us that this Will shall be forever binding upon both of us and upon the estate of each of us, and shall bind our legatees, distributes (sic) and representatives. We further mutually agree that this Will shall be irrevocable and shall not be modified or revoked by either of us or by the survivor of us, except that it may be revoked or modified only by a writing subscribed by both of us and executed by both of us with the formality of a Will. SEVENTH: Upon the death of one of us leaving the other surviving, the survivor is hereby appointed executor or executrix of the estate of the one dying first; and upon the death of both of us.

A Bronx Probate Lawyer said that, decedent and her husband entered into a Marital Settlement Agreement in January 2001 which provided, in part, that: 7. The Husband and Wife have heretofore executed a Joint Irrevocable Last Will and Testament in New York, which is again reaffirmed by the parties as their Last Will and Testament, and both parties agree to maintain and support the obligation and covenants made therein and further agree not to attempt to Revoke such Last Will and Testament. Decedent and her husband owned two residences; one was a condominium in Boca Raton, Florida, the other, a condominium in Roslyn, New York. The Marital Settlement Agreement provided that Jerome acquired title to the Florida property and the decedent acquired the Roslyn property.

A Manhattan Probate Lawyer said that, on June 2, 2006, decedent established the Sandra Murray 2006 Irrevocable Trust. Decedent and her son-in-law, Ivan Kline, served as co-trustees of the trust. Upon creating the trust, decedent transferred to it some of her property, including the Roslyn property.

The husband, as nominated executor, filed a petition propounding the December 20, 1993 joint will for admission to probate. Objections to the husband serving as executor were filed. Preliminary letters issued to Jerome on July 15, 2008. The husband commenced a discovery proceeding pursuant to SCPA 2103 seeking, among other things, a direction that Ivan, as trustee of the trust, convey the Roslyn property back to the estate. The objectants filed an answer to the petition asserting the decedent “exercised her unfettered authority to dispose of her property during her lifetime, by irrevocably transferring a portion thereof to the Trust and making gifts to her children.”

A Nassau Estate Litigation Lawyer said that, there are two motions before the court involving the four (4) referenced documents. The objectants move for an order under CPLR 3212 (1) dismissing the SCPA 2103 proceeding as against them; (2) dismissing the objections to the petition for probate of the September 5, 2007 will; and, (3) granting a decree admitting to probate the September 5, 2007 instrument. The husband moves for an order under CPLR 3212 (a) dismissing the petition seeking probate of the September 5, 2007 instrument; (b) dismissing the objections to his appointment as executor of the decedent’s estate; and, (c) under SCPA 2103, granting the relief sought in the turnover proceeding commenced by him.

The husband contends that pursuant to Article “SECOND” of the will, the property that decedent placed into the Trust should pass to him. He asserts that under Article “SECOND”, two categories of property passed to the survivor of Jerome and the decedent: (1) “the entire estate of the one dying first” and, (2) “all property of which she (decedent) or he has power of disposal, whether owned jointly or severally.” He asserts that even if the Roslyn property was transferred to the Trust and not part of decedent’s probate estate, decedent retained at the time of her death the “power of disposal” as contemplated by Article “SECOND” of the joint will.

The issue in this case is whether the transfer of certain property, including the Roslyn property, into the 2006 trust created by the decedent, which then passes to the decedent’s and the husband’s four children by decedent’s exercise of the power of appointment retained by her in the September 2007 will, is violative of the terms of the joint will.

It is a fundamental proposition that a will is ambulatory in nature and is ordinarily revocable during the life of the testator. Even after due execution of a will, testators retain unfettered authority to dispose of all property during their lifetimes. Testators may surrender the power of revocation by agreement.

It is established law in New York that two persons may contractually agree to dispose of their estates in a particular manner and that such an agreement may find expression in a joint or mutual will. Such surrender of the right to revoke a prior will is scrutinized carefully and there must be a clear and unambiguous exhibition of that intent in the joint will under review. An agreement not to revoke a joint will “can be established only by an express statement in the will that the instrument is a joint will and that the provisions thereof are intended to constitute a contract between the parties”. A perusal of the December 20, 1993 joint will establishes that Jerome and the decedent jointly and individually agreed to abide by the testamentary plan contained in the will. The will expressly states that Jerome and decedent executed the document “as an agreement binding upon both of us, and upon the survivor of us.” As to what Jerome and decedent agreed to do, a specific testamentary plan for the disposition of property upon the death of both of them was set forth in the will. Article “FOURTH (A)” provides that all estate property of the survivor is to be given to the husband and decedent’s surviving grandchildren in trust divided into as many separate shares as surviving grandchildren and one additional share to the objectants. Pursuant to Article “SECOND,” upon the death of one of them, the entire estate of the one dying first and all property of which she or he has the “power of disposal” is given to the survivor upon condition that whatever remains of the estate after the death of the survivor should be given as set forth in Article “FOURTH.” The use of the provision “we” throughout the will is additional evidence that the decedent and Jerome intended the will to be a binding contract. These factors, taken together, establish an agreement between the testators to dispose of their respective estates in the manner specified in the joint will.

Decedent’s daughter commenced a plenary action in which she sought a declaratory judgment that the creation of the Totten trusts by decedent violated the terms of the 1971 settlement agreement by changing the terms of decedent’s 1969 will. In determining that the decedent did not violate the settlement agreement, the court noted that “the agreement itself is silent as to the Totten trusts or any other testamentary like forms of disposition of property”. The court stated that while the decedent agreed to leave in place the 1969 will, decedent did not agree to leave any particular property or any amount of money to her children and the settlement agreement did not preclude decedent from disposing of any or all of her assets by gift or Totten trust, or in their wills, from which it can be fairly inferred that the decedent relinquished her right to dispose of assets not specifically referenced in either the agreement in the wills during her lifetime.

The objectants contend that decedent never agreed to preserve for the benefit of the husband any or all of her property and that neither the will nor the Marital Settlement Agreement prevented decedent from disposing of her property, in any manner, during her lifetime. They assert that the decedent transferred her interest in the Roslyn property to the Trust in the 2006 Trust and retained no incidents of ownership.

The husband acknowledges, as noted hereinabove, that neither he nor the decedent were precluded under the Last Will and Testament from making transfers of their property during their lifetime. He concedes that had decedent deeded or gifted the Roslyn property outright to her and his four children, the holding in Blackmon would be applicable. Jerome asserts, however, that since decedent retained at her death the “power of disposal” over the property she put in the Trust through the exercise of the power of appointment in the 2007 will, that property should pass to him pursuant to Article “SECOND” of the Will. Indeed, the Blackmon court pointedly stated that in the line of cases governing joint wills, “the court has held that where two people sign joint or mutual wills and one of them dies, the survivor is bound to the terms of the will and may not make a different testamentary disposition or inter vivos gift that would defeat the purpose of the joint will agreement”.

Here, regardless of any ownership interest, decedent retained the power of appointment and the “power of disposal” of property by exercise thereof in the 2007 will. Under the circumstances, decedent could not convey title to the Roslyn property as decedent is bound by the terms of the joint will that no property which comprised her estate or over which she had the “power of disposal” could pass other than as provided under Article “SECOND” of the will. Here, in effect, decedent made a different testamentary disposition violative of the terms of the joint will. Accordingly, the husband is entitled to summary judgment in the turnover proceeding to the extent of a direction that Ivan as co-trustee reconvey the property to the estate. The husband is further entitled to summary judgment admitting the 1993 will to probate and dismissing Ivan’s petition seeking probate of the 2007 instrument. The objections to his appointment as executor are dismissed.

Accordingly, the court held that the objectants motion for summary judgment is denied in accordance with the foregoing. The matter is scheduled for a conference with a member of the court’s law department on April 8, 2009.

If you will to contest the probate of a will seek the representation of a Nassau Will Contest Attorney and Nassau Estate Litigation Attorney at Stephen Bilkis and Associates.

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