## Facts

- In 1993, spouses Sandra Murray (decedent) and Jerome Murray executed a joint will providing that, on the first spouse’s death, the survivor would receive the decedent’s entire estate and any property over which either spouse had a “power of disposal,” whether owned jointly or separately.
- The joint will stated it was “forever binding” and could be revoked or modified only by a writing signed by both spouses and executed with will formalities, reflecting an agreement that the testamentary plan would not be changed unilaterally after the first death.
- Sandra and Jerome later divorced. In a marital settlement agreement executed in 2000 and incorporated into the April 6, 2001 divorce judgment, they reaffirmed the joint will’s continuing effect and agreed that neither would attempt to revoke it.
- The divorce judgment allocated real property between them, awarding Sandra sole title to a condominium in Roslyn, New York.
- In 2006, Sandra transferred title to the Roslyn condominium into the “Sandra Murray 2006 Irrevocable Trust,” naming herself and her son-in-law, Ivan O. Kline, as cotrustees. The trust gave Sandra a power of appointment over the trust principal at death.
- In 2007, Sandra executed a new will whose single substantive direction exercised the power of appointment to distribute the Roslyn condominium in equal shares to her and Jerome’s four children (including Karen B. Murray Kline, Ivan’s spouse).
- Sandra died in 2008. Jerome offered the 1993 joint will for probate and, as preliminary executor, commenced a turnover proceeding under SCPA 2103 seeking an order directing Ivan, as trustee, to deed the condominium to Sandra’s estate for administration under the joint will.
- Karen and Ivan opposed turnover, argued the condominium belonged to the trust rather than the estate, and petitioned for probate of Sandra’s 2007 will.
- The Surrogate’s Court (Nassau County) granted Jerome summary judgment, admitted the joint will to probate, directed Ivan to convey the condominium to the estate, dismissed objections to Jerome’s fiduciary status, and denied probate of the 2007 will to the extent it conflicted with the joint will. The Klines appealed.

## Issues

1. Whether the 1993 joint will, expressly “forever binding” and reaffirmed in the marital settlement agreement, constituted an enforceable agreement restricting Sandra’s ability to change the dispositive plan after divorce and at death.
2. Whether Sandra’s transfer of the condominium to an irrevocable trust coupled with a retained power of appointment, and her later 2007 will exercising that power, could validly redirect the condominium in a manner inconsistent with the joint will.
3. Whether the Surrogate’s Court properly granted summary judgment and ordered turnover of the condominium to the estate under SCPA 2103, and properly denied probate of the 2007 will to the extent of any conflict.

## Decision

- The Appellate Division, Second Department, affirmed the order and decree of the Surrogate’s Court.
- The court sustained probate of the 1993 joint will and upheld denial of probate of Sandra’s 2007 will to the extent it conflicted with the joint will’s binding plan.
- The court affirmed summary judgment directing Ivan O. Kline, as trustee, to execute and deliver a deed conveying the Roslyn condominium to Jerome Murray, as executor, for administration as part of the estate.
- The court affirmed dismissal of the Klines’ objections to Jerome’s appointment/authority as fiduciary in connection with the proceeding.

## Legal Principles

- A joint will may function not only as a testamentary instrument but also as a binding agreement when its language plainly shows the parties’ intent to create a contract governing ultimate disposition (e.g., “forever binding” and revocable only by a jointly executed writing meeting will formalities).
- When a joint-will agreement is reaffirmed in a marital settlement agreement incorporated into a divorce judgment, the divorce does not negate the parties’ contractual commitment regarding testamentary disposition.
- A party bound by a contractual joint will may not, through later estate-planning devices (including a trust funded with the property and a retained power of appointment exercised by a later will), dispose of property at death in a way that defeats the contractual plan; equity can require restoration of the property to the estate for administration consistent with the agreement.
- SCPA 2103 authorizes a fiduciary to seek turnover of property that should be administered as part of the estate, including property held by a trustee when the decedent’s attempted diversion conflicts with enforceable rights arising from a contractual will; where the instruments are unambiguous, summary judgment may be appropriate.

## Conclusion

*Matter of Murray* enforced a contractual joint will that the spouses labeled “forever binding” and later reaffirmed in their divorce settlement, holding that Sandra could not use an irrevocable trust and a subsequent will exercising a power of appointment to redirect a condominium contrary to the agreed plan; the trustee was ordered to deed the property to the estate, and probate of the later will was denied to the extent of the conflict.


Matter of Murray, 84 A.D.3d 106 (2011)