Surrogate Court Gives Lifetime Promise Priority Over Will
by cjleclaire
 Bonnie Lawston-LiEstate Attorney
Feb 16, 2018 | 22972 views | 0 0 comments | 892 892 recommendations | email to a friend | print | permalink

Perhaps the most common way to transfer property upon death in the State of New York is through a valid will or trust.   What happens, though, if you’ve entered into a binding contract to transfer certain property to a specific beneficiary under you will, but the terms of the document convey it to someone else? Which document takes priority?

The Surrogate Court for Nassau County looked at this specific legal issue in Schwartz v. Bourque, 2017 NY Slip Op 31621 (U)(Sur. Ct., Nassau County, June 14, 2017), concluding that a person who enters into a valid contract to transfer property upon death may not subsequently agree to transfer the property to another person, either while still alive or in a will.

In the Schwartz case, the dispute centered on title to the real property where the decedent and two subsequent generations resided. Initially, the deceased (Mother) was the sole owner of the property, but executed an agreement in 1978 that allowed her daughter (Daughter) to live on the property for as long as she desired, provided she paid the “carrying charges” on the residence. The agreement also promised to convey full legal title to the Daughter in the Mother’s will.

The 1978 agreement was amended six years later, with the preparation and execution of a new agreement and a deed, immediately conveying a one-half interest in the property to the Daughter. In 2012, however, the Mother executed a new deed, attempting to transfer the remaining one-half interest in the property to her granddaughter (Granddaughter). The Daughter objected to the conveyance, arguing that it violated the 1978 agreement. The Granddaughter claimed that the 1984 agreement superseded the 1978 agreement and, because it contained no clause regarding the transfer of the property by will, that clause was no longer valid.

After reviewing the facts, the court ruled that a subsequent contract will only replace and render a prior contract void under one of two circumstances:

  • The subsequent contract contains specific language voiding or superseding the earlier agreement—the court found that it did not
  • The contracts covered exactly the same subject matter—the court found that they did not, as one made a promise of a testamentary disposition and the other did not

Because the Granddaughter could not show that the 1984 agreement superseded the 1978 agreement and revoked the promise to convey the property to the Daughter in the Mother’s will, the Granddaughter was not legally entitled to any interest in the property. Accordingly, the 2012 deed was not valid.

It’s obvious from the facts of this case that an estate matter can become extremely complicated. It’s critical that you have an experienced, knowledgeable and capable lawyer to protect your interests. Probate and Estate Administration Attorney Bonnie Lawston brings more than two decades of hands-on experience in estate litigation to clients across Nassau County and Suffolk County on Long Island, New York.

Contact the Law Office of Bonnie Lawston for all your Probate and Estate Administration matters. 

At the Law Office of Bonnie Lawston, we offer experienced estate litigation counsel to individuals across Suffolk County and Nassau County. Contact our office online  or call us at 631-425-7299 or 24/7 at 855-479-4700, to set up a free initial consultation.

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