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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.
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
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:
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.
. . . .
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