Legal Question in Wills and Trusts in New York

Will Contest

Father died in 1999. His and stepmother's wills were matching reciprocal wills prepared in 1991 after their marriage. His will left all to her unless she died first,in which case all assets would be split evenly among his two children and her two children. She told me her will was exactly the same and gave me a copy of his when she asked me to sign the Waiver of Process; Consent to Probate form after he passed away. Father also left a small amount of life insurance to brother and I. My stepmother told me that he intended to add her as

beneficiary and never did and that she was concerned about money. I shared 1/3 of the insurance with her as she again assured me I would receive equal share of her estate. She treated me like a daughter (not adopted though)as I was a child when they met and I knew some day I'd see it again unless needed. Most of her estate value is her house and her savings which consists mostly of my dad's pension which she banked for the last five years per her daughter. Now she has passed away and I found out a new will was done by my dad's probate atty Aug 2000 leaving all to her children and a small CD outside of will (less than I gave her)Her son is executor. One atty has mentioned ''constructive trust''?


Asked on 10/04/04, 5:12 pm

2 Answers from Attorneys
Norman Nadel Norman Nadel, Esq.

Re: Will Contest

No. Not a constructive trust issue.

Contract law applies.

Did Dad and Stepmother enter into a contract which obligated them to maintain the the provisions of the reciprocal wills?

Stepmother's Will is valid but her estate may have to perform the obligations arising out of the contract, if one existed.

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Answered on 10/05/04, 9:46 am
Walter LeVine Walter D. LeVine, Esq.

Re: Will Contest

This is the typical situation of second marriages, failure to abide by verbal agreements. Unless you can establish an agreement that there be reciprocal Wills (you might want to recheck your father's Will to see if anything about this was mentioned or see if there was any outside-the-Will agreement requiring reciprocal Wills), you would have an uphill battle to try to upset your step-mother's newer Will. You might consider filing a claim for reimbursement of the insurance funds (treating it as a loan) you gave her, but without something in writing, this will be an uphill battle also. You might try to argue that giving her a share of the insurance proceeds was consideration for her agreement to maintain the reciprocal Wills, and constituted a contract to maintain them. This would be both a contract claim, and might also be part of a claim for imposition of a constructive trust. I hope you kept a copy of the check to her. You might also consider a malpractice claim against the attorney who drew the new Will, if he was aware of the prior agreement to maintain reciprocal Wills and/or was the attorney who prepared both prior Wills. In any case, if you are considering filing a claim, you must act quickly, as there are time limits on filing will contests.

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Answered on 10/05/04, 1:57 pm


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