NY App. Court Deems Will Admissible to Probate despite Restrictions in Prior, Joint Will Because Will’s Enforceability Did Not Affect Its Legality Nor Its Admissibility To Probate (Apr. 19, 2011)

NY App. Court Deems Will Admissible to Probate despite Restrictions in Prior, Joint Will Because Will’s Enforceability Did Not Affect Its Legality Nor Its Admissibility To Probate (Apr. 19, 2011)

In Matter of Murray, 2011 NY Slip Op 3247 (N.Y. App. Div. 2d Dep't Apr. 19, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], respondent (Jerome) and decedent, as husband and wife, executed a joint will which bequeathed to the survivor all property of which the first to die had power of disposal, whether owned jointly or severally. The couple later divorced. Their marital settlement agreement stated that neither would revoke the joint will. Pursuant to the agreement, sole title to a condominium was transferred to the decedent. The decedent later established a trust with the condominium as its corpus and executed a will providing that the corpus would pass to her children on her death.

Following decedent's death, respondent, as the decedent's executor, commenced a turnover proceeding pursuant to NY CLS SCPA § 2103. Respondent sought to compel appellant trustee to turn over the condominium. In response, the trustee filed a petition for the probate of the decedent's later will and objected to respondent's appointment. The Nassau County Surrogate's Court granted respondent summary judgment and dismissed the objections to his appointment and the trustee's petition for probate.

On appeal, the appellate court held that respondent had established that the condominium was a part of the decedent's estate because she had retained power of disposal over it pursuant to her trust. As appellants failed to raise a triable issue of fact in opposition, respondent was properly awarded summary judgment as to his petition for turnover.

However, the trial court erred in dismissing the trustee's petition to probate the decedent's later will. The trustee had provided an affidavit from the attesting witnesses acknowledging the will's validity and execution. Respondent contended that the later will should not be admitted to probate because the joint will's "FIFTH" Article provided that it was irrevocable and that the joint will could only be revoked or modified by a joint writing. The court held that:

While individuals may validly surrender their power of revocation, the law requires, as a threshold, a showing of clear and unambiguous evidence of the intent to surrender such right. Even if we agree with Jerome that Article "FIFTH" of the joint will satisfies that threshold showing, that article does not preclude admitting the 2007 will to probate, since a will may not be denied probate on the ground that the testator previously "bound himself to a different disposition of [his] property by contract." Put differently, the enforceability of the terms of a will does not affect the "will's status as a legal instrument," nor does it determine if the will should be admitted to probate. Rather, in light of Article "FIFTH" of the joint will, admitting the 2007 will to probate may render the decedent's estate vulnerable to an action against it by Jerome, for example, seeking to impose a constructive trust upon her estate or for an accounting.

(citations omitted)

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