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Your Last Will (or Trust) are Confusing, Now What?

Review your Last Will and Trust instruments regularly, otherwise, the Courts get involved.

Sometimes parties involved in a Last Will or Trust need help to decipher the intent of provisions in a person’s Last Will or Trust and may ask the Court to interpret these confusing provisions. In New York, the result is known as a construction proceeding.

Purpose of Construction Proceeding

The purpose of a will (or Trust) construction proceeding is to ascertain and give effect to the testator’s intent. With this principle in mind, New York case law has established that all rules of interpretation are subordinated to the requirement that the actual purpose of the testator is sought and effectuated as far as is consonant with principles of law and public policy. Further, the testator’s intent must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.

Example

EXAMPLE: Marianna B. lived in Smithtown, NY. At the time she executed her Last Will and Testament (in 1983) she was a widow with four children. Marianna B. (the “decedent”) died in 2002, leaving a will dated August 1, 1983, which was admitted to probate. In the third article of the will, the decedent “devise[d]” certain real property located in Suffolk County to her four children. The decedent directed, however, that the property not be sold

“during the time when any one of my children is single and not married; and that any one of them resides in the said property.”

The decedent further directed that when

“all of my children are married or when all of the children leave … and live elsewhere, whether they be married or single,”

the property was to be sold and the proceeds divided equally among her four children.

Two of Marianna’s daughters petitioned pursuant to Surrogate’s Court Procedures Act (“SCPA”) section 1420 for a construction of the Marianna’s will. They sought a construction that certain provisions contained in the third article of the will directing that the property not be sold while any one of the decedent’s single and unmarried children live therein were invalid.

The two daughters claimed that all four children each owned a one-fourth interest in the property, in fee simple absolute, as tenants in common, without restriction. The two daughters wanted to sell the house and split the proceeds among the four children. The two daughters also put forth a claim that their mother’s Last Will violated social policy through restraints on marriage

RESULT: The Suffolk County Surrogate’s Court held that the clear and unambiguous intent of the decedent was to provide her single and unmarried child or children the use of the property while they remained single and then, after they were married or had all left the property, to have the property sold and the proceeds divided equally among her four children.

Learn the Lesson

LESSON: Avoid confusion, review (and revise, if necessary) your estate planning documents regularly if you wish to truly make things easier for your family after you have passed.

See IN THE MATTER OF MARIANNA BONANNO, DECEASED. GIOVANNA BAJIC, ET AL., PETITIONERS-APPELLANTS; BENNETT BONANNO, RESPONDENT-RESPONDENT, ET AL., RESPONDENT., Supreme Court, Appellate Division, Second Department, New York.·151 A.D.3d 718 (N.Y. App. Div. 2017).

Futterman & Lanza, LLP has offices in Smithtown, NY, Valley Stream, NY (by appointment only), Southampton, NY (by appointment only) and Babylon, NY (by appointment only).

Futterman & Lanza, LLP has clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester, and Rockland Counties.

Futterman & Lanza, LLP concentrates its practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and Valley Stream, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice on Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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