Now you Have It, Now You Don’t
by Joseph Yamaner & Nigina Khasidova
Oct 18, 2016 | 5052 views | 0 0 comments | 366 366 recommendations | email to a friend | print
A couple of weeks ago, I experienced an event that was perhaps not completely uncommon in the formal universe of judges, lawyers and courtroom proceedings, but in my practice a bit unusual.

I had an appointment with a very young couple sitting across from my desk with three small children. They told me they wanted to probate the Last Will & Testament of the wife’s deceased grandmother.

When I asked to see the will, they didn’t have even a copy. I persisted in questioning them to disclose the facts surrounding the existence of a will, at which point the husband, a disabled war veteran, interrupted me by stating that “she tore up the will.”

“She what?” I asked. “She tore up the will,” he repeated. “Who? How? When?” I asked.

He explained that shortly after the funeral, and in presence of himself and another witness, his mother-in-law, the deceased's daughter, was observed coming over to the house where the couple lived with the grandmother for many years in search of “documents.”

When she found the original will and read it aloud, she simply tore it up in their presence.

When I further inquired as to how the couple knew about the existence of the will, the wife informed me that before her death her grandmother told her about the existence of a will bequeathing the house to her two grandchildren.

The grandmother also gave the wife the name of a reputable law firm she consulted in the execution of said will, which the firm still had a copy of in their files.

The couple was barred from speaking to that law firm regarding the will until they had formally retained their own attorney.

On a pro-bono basis, my associate Nigina Khasidova executed an authorization to speak to the drafting firm, and persuaded them to produce a copy of the will. The will revealed that the grandmother had in fact intended to bequest the house, estimated to have a market value of nearly $2 million, to her two grandchildren.

Meanwhile, after tearing up the will, the mother-in-law submitted a petition to the court attesting that no will ever existed, and since she was deemed the sole heir of the estate in the absence of a will, the mother was appointed the administrator and only beneficiary of the entire estate.

Thereafter, the mother promptly started an eviction action to remove her own children from the house without any intent to compensate them with the proceeds from the sale.

The moral of the story is that the existence of a will can totally change the outcome of who inherits property. The use of a will to override the default rules of New York’s inheritance statutes can be a very effective planning tool in carrying out a decedent’s intentions.

In this case, if we can prove with judicial intervention that the will existed after the death of the grandmother, my clients may be able to keep the house.

On the other hand, without any adjudication, this unlucky couple will continue to face eviction and will not be receiving any compensation whatsoever from the estate of the grandmother they lived with and took care of for the past 10 years. They might have it, now they don’t.

Joseph Yamaner and Nigina Khasidova practice law from their firm in Forest Hills.

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