Matter of Bernstein v Lopata

[*1] Matter of Bernstein v Lopata 2006 NY Slip Op 50939(U) [12 Misc 3d 1157(A)] Decided on May 18, 2006 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2006
Sur Ct, Nassau County

In re the Proceeding of, Petitioner ANITA BERNSTEIN

against

SIMON LOPATA, Respondent, Pursuant to SCPA 1420 for Construction of the Will of BENJAMIN BERNSTEIN, Deceased.



333765



Harvey Spizz, Esq. (Attorney for Petitioner, Anita Bernstein)

Spizz & Cooper, LLP

114 Old Country Road

Suite 644

Mineola, NY 11501

John B. Clarke, Esq. (Attorney for Simon LoPata, Executor)

35 Broad Street Williston Park, NY 11596

Attorney General of the State of New York (Attorney for Charitable Beneficiaries)

120 Broadway

New York, NY 10271

John B. Riordan, J.

In this construction proceeding, the decedent's daughter Anita, a distributee, contends that the residuary clause in the Will is void for indefiniteness and that the residue therefore passes in intestacy. The residuary clause is very brief and provides,

"I direct that my Executor/Executrix shall distribute

the residuary of my estate to charities of his/her choice."

The construction proposed by the decedent's daughter is opposed by the executor and by the Attorney General, who appears on behalf of the charitable beneficiaries.

As a preliminary matter, the executor contends that the proceeding must be dismissed because the petitioner does not have standing. SCPA 1420(1) provides that a fiduciary or "a person interested in obtaining a determination as to the validity, construction or effect of any provision of a will may present to the court in which the will was probated a petition..." for the construction of the Will. In order to have a sufficient interest to have standing to commence a proceeding for construction, the petitioner must have an interest in the property that will be affected by the construction; a person not having such an interest may not request a construction (11 Warren' s Heaton on Surrogate's Courts, §187.05[3][c][1], 6th ed. revised, and cases cited therein). The executor posits that the petitioner's unsuccessful probate contest violated the Will's in terrorem clause, thereby resulting in a forfeiture of any interest in the estate.

In Matter of Stoffel (104 Misc 2d 154 [1980]; aff'd, 79 AD2d 658 [1980]), the decedent's distributees were first cousins who sought a construction of a paragraph of the Will which contained a charitable bequest. The Attorney General, there, as here, on behalf of the charitable beneficiaries, contended that the distributees had been disinherited and therefore had no standing to seek a construction. In Stoffel, the petitioners had been specifically disinherited by other provisions of the Will. The court, citing the definition of "Will" in EPTL 1-2.18 (now EPTL 1-2.19), held that the Legislature's enactment of the statute overruled the common law rule against negative dispositions (see Turano, Practice Commentaries, McKinney's Cons Law of NY, Book 17B, EPTL 1-2.19 at 50). Finding that the testator's intent was to effect a complete and total disinheritance of the petitioners, the court in Stoffel, found they had no standing to seek a [*2]construction and dismissed the proceeding.

Here, the in terrorem clause provides that, "[i]n the event that any beneficiary under this Will, directly or indirectly, file, support or be a party to a court action against me, my estate or my Executor, about the provisions of this Will, then I direct that every gift made to them in this Will or otherwise to be a beneficiary shall terminate and become void and shall revert back to my residuary estate" (emphasis added).

The additional language "or otherwise to be a beneficiary" clearly indicates that the testator sought to completely disinherit any beneficiary who objected to the probate of the Will, not only from their bequest under the Will, but also from taking any distributive share that party might have in intestacy. The court therefore concludes that the petitioner has no standing to seek a construction of the residuary clause and her petition should be dismissed (Matter of Stoffel, 104 Misc 2d 154 [1980]; aff'd, 79 AD2d 658 [1980]; Matter of Beu, 70 Misc 2d 396 [1972], aff'd 44 AD2d 774 [1974]; Matter of Flink, NYLJ, Jan. 28, 2002 at 21, col. 3).

Even if the court were to conclude otherwise, her petition must fail. Despite the petitioner's efforts to do so, the court is not persuaded that the facts of this case are sufficiently different from those in Matter of Harrigan (23 AD2d 667 [2d Dept. 1965]) to warrant a different result. In Harrigan the residuary was given to the executrix "to be divided or used for any and all charities that she in her uncontrolled discretion may deem it best and fitting." The Court held that that clause constituted a valid charitable bequest. The Court was also unconvinced that the intervening death of the nominated executrix prevented the charitable disposition of the residue, finding a general charitable intent on the part of the testator not only by the residuary clause itself, but also by her express disinheritance of her relatives in other provisions of the Will.

Accordingly, the court finds that the petitioner has no standing to bring the instant construction proceeding. Furthermore, even if the court were to hold otherwise, the residuary clause of the decedent's Will constitutes a valid charitable bequest.

This decision constitutes the order of the court and no additional order need be submitted.

Dated: May 18, 2006

JOHN B. RIORDAN

Judge of the

Surrogate's Court

The appearance of counsel is as follows: