On 17 October 1967, a husband and a wife (“wife-one”) executed a joint will.
On 27 September 1971, the wife died and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County (for estate administration; estate litigation). At the time of her death, the husband and the wife owned as tenants by the entirety, two parcels of real estate and had a bank account in their joint names in a Brooklyn bank.
On 20 November 1972, the husband contracted to sell one of the properties (the “Clarenton Road property”) for $32,750, all cash. A New York Probate Lawyer said that on 26 December 1972, he got re-married to defendant-one (“wife-two”). On 3 March 1973, the husband and defendant-one contracted to buy certain real property (the “Forest Green Property”) for $44,785, that is, $26,785 cash over a mortgage of $18,000. On 30 June 1973, the husband closed the sale of the aforesaid property and on 3 July 1973, with the proceeds from the sale thereof, closed the purchase of the new property, taking title thereto in his name and defendant-one as tenants by the entirety.
On 7 November 1974, the husband died and the joint will insofar as his estate was concerned was admitted to probate in Richmond County. Brooklyn Probate Lawyers said at the time of his death, the husband owned the Forest Green property as tenants by the entirety with defendant-one, the Avenue D property in his own name (as wife-one, with whom he had owned said property as tenants by the entirety, had pre-deceased him), two bank accounts in his name jointly with defendant-one in which there was $305.50 at the East River Savings Bank (emanating from the husband’s and wife-one’s bank account in Brooklyn), and $148.32 at a Trust Company, the monies of which were contributed solely by the husband. It was alleged that furniture in the home of the husband and defendant-one was purchased by the husband with $4,065 from the proceeds of the sale of the Clarendon Road property.
Neither wife-one nor wife-two ever worked or made any contribution to the purchases of Clarendon Road, Avenue D, the bank accounts or the purchase of the furniture at the home of the husband and wife-two/defendant-one.
On or about 26 February 1975, plaintiffs commenced the instant action. The theory of the complaint is that the joint will executed by the husband and wife-one, plaintiffs’ parents, imposed a contractual obligation upon the survivor to dispose of his or her assets, upon his or her death, to plaintiffs. The plaintiffs seek a declaration of their rights with respect to their father’s estate.
Long Island Probate Lawyers said the complaint consisted of four causes of action, as follows: to impress a constructive trust upon certain real property; to void the right of election filed by defendant-one under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband; to impress a constructive trust upon the proceeds of a pension plan the husband had with the City of New York, which were paid to defendant-one as designated beneficiary at the husband’s death; to impress a constructive trust upon funds which, prior to the death of wife-one had been in savings and/or checking accounts in the joint or individual names of the husband and wife-one, and upon other personal property which had been in the joint and/or individual names of the husband and wife-one prior to wife-one’s death, which the husband thereafter transferred to himself and defendant-one as joint tenants.
Trial Term dismissed the complaint on the grounds that the joint will did not expressly impose a restriction on the disposition of property during the lifetime of the surviving spouse and that the joint will may not be enforced as a contract, for want of adequate consideration.
Plaintiffs appeal; an action for a declaratory judgment.
The trial court was in error.
It has been held that two persons may validly agree to dispose of their estates in a particular way and may embody their agreement in mutual wills or a joint testament. A will is, of course, always ambulatory and revocable until death; however, one so inclined may bind himself a mutual or joint will to dispose of his estate in a specified and agreed manner. If, in violation of the agreement so made, one of the parties to the joint will executes a new one, the latter is recognized as his last testament, but the courts will require its executor and beneficiaries to perform the contract of their decedent. Indeed, to permit the one who survives to gain the benefits of the joint will and then to flout its provisions in violation of the promise made to the other would be a mockery of justice. The principle, supported by reason and equity, has been followed in this State as well as in other jurisdictions.
Notably, each (testator) was at liberty during his lifetime to use his own (property) as he saw fit, short of making a different testamentary disposition or a gift to defeat the purpose of the agreement, which was that upon his death each was to leave the property of which he was then possessed in the manner agreed upon.
Here, the joint will executed by the husband and wife-one strongly suggests an enforceable obligation upon the survivor to dispose of his property pursuant to paragraph “Second” because throughout, the plural pronouns “we” and “us” and not “I” are used, and further because the beneficiaries under the will, other than the testators themselves, are their children. As was said in another connection, the whole writing may be instinct with an obligation imperfectly expressed. If that is so, there is a contract.
The court has recently ruled in a specifically enforced contractual obligations created by a joint will whose language is virtually identical to the will executed by the parents of plaintiffs herein. The following language from that opinion is apropos: While the mere existence of a joint testament may not in and of itself serve to establish the agreement, the language used by the testators or the circumstances surrounding it is suffice to spell out a contract, particularly in the case of a joint will executed by a husband and a wife or by parents interested in providing for their children.
The defendants’ contention that all of the assets of the husband and wife-one were provided by the husband and that therefore the husband could dispose of his property as he saw fit is of no moment. The husband’s property during his marriage to wife-one was held in both their names and upon her death; he received and became the owner of all the property in his own name. The husband, of course, was free during his lifetime to use the property so received but he could not make a testamentary disposition contrary to the agreement or a gift, as he did here, to defeat the purpose of the agreement.
Moreover, the defendants’ attempt to distinguish the case on the ground that the husband did not execute a separate will after wife-one’s death is irrelevant since, as indicated above, the husband could not defeat the agreement embodied in the joint will by making a gift or gifts to his second wife. There was consideration sufficient to enforce the agreement, found in the mutual promises of the testator/testatrix to have the survivor dispose of the property to their children upon his or her death. Had the husband pre-deceased wife-one, it was surely his intention that wife-one, upon her death, should devise and bequeath the property to plaintiffs.
Therefore, defendants’ various contentions in support of the claim that the joint will did not create an enforceable contract are rejected. Reliance by the trial court on EPTL § 10-6.2(a)(4) was error as this section refers to the “Exercise of a power of appointment; conformity to directions of donor”, and is inapplicable to the case here.
The court notes that the Clarendon Road property sold by the husband was property which he and his deceased wife held as tenants by the entirety.
The general rule is that an estate by the entirety can be conveyed or encumbered only by the joint deed or consent of the husband and the wife, and neither can, without the consent of the other, convey or encumber any part of an estate by the entirety so as to affect the right of survivorship in the other, but where either a husband or a wife survives, such survivor may dispose of the property as he or she sees fit. However, in this case we recognize a restriction on the right of the survivor husband to make an unfettered disposition. The court holds that the rule as to disposition of properties owned by tenants by the entirety is changed. The court merely says that a husband and a wife who are tenants by the entirety may, by joint will containing an exchange of promises, provide for the ultimate disposition of property held by them as tenants by the.
On defendant-one’s right of election under section 5-1.1 of the Estates, Powers and Trusts Law, the court concludes that such election is unavailable against any property, real or personal, which is subject to plaintiffs’ entitlements under the joint last will and testament of the husband and wife-one.
Henceforth, the judgment of the Supreme Court, New York County is reversed, on the law, and the complaint reinstated, without costs; judgment is granted in favor of plaintiffs.
To know more of your rights under circumstances similar to the above, contact a Kings County Probate Attorney or a Kings County Will Contest Attorney, among others, at Stephen Bilkis & Associates. Our firm offers its assistance by providing you with free legal consultations to help you with your legal struggles.