Bonnie Lynn Chmil

Successful defence of a contested will

My partner, Joshua Rubenstein and I, obtained an extremely favorable decision from the Surrogate’s Court, Westchester County on behalf of the executors of an estate of a prominent real estate entrepreneur in New York.  He died with a gross estate of $280 million, the bulk of which was left to his wife in a QTIP trust, the remainder of which would pass to a son from his first marriage and two sons from his second marriage upon her death. His other two children from his first marriage, for whom he made bequests of $2 million each and substantial additional provisions outside of his will, filed a claim against the estate, seeking in excess of $85 million, based on the decedent’s alleged breach of an obligation in a separation agreement with his first wife to make a bequest in his will to the children of that marriage of a sum equal to one-third of his net estate and of his coin collection. Their claim was based on their belief that the bequests were to be divided equally among the children of   the first marriage and had to be made outright and not in a remainder interest, and also was inflated by their theories that their brother had irrevocably waived his claim with respect to the decedent’s obligations under the separation agreement, entitling them to the entire one-third of the net estate, and that they were “contract creditors” against whom taxes could not be apportioned and entitling them to 9% prejudgment interest from the date of death. On the petitioners’ motion and our cross-motion for partial summary judgment, the court held that the petitioners were not entitled to their brother’s share of one-third of the net estate because their brother had effectively retracted his waiver of the decedent’s performance under the separation agreement, and that the separation agreement permitted the decedent to make a bequest to one or more of such children as a remainder beneficiary of a trust and, more significantly, did not require that the bequests be made in equal shares among the children. The court further held that the petitioners are not contract creditors but merely have a right in equity to enforce the decedent’s obligation, and therefore, to the extent the court ultimately determined that the decedent breached his obligation to bequeath one-third of his estate to these children and that the petitioners were entitled to enforce that obligation to the extent of any shortfall, the petitioners would be requires they pay their pro rata share of any estate taxes.  This decision dramatically reduced the likelihood of any potential recovery by petitioners of any share at all of the coin collection and any shortfall in the decedent’s bequest of one-third of his net estate.  As a result, the matter ultimately settled at a small fraction of what the petitioners had been seeking.