Children Ask Court to Enforce Provisions of Divorce Decree Not Included in Parents' Wills

A New York surrogate court dismisses a petition to enforce provisions of a forgotten divorce decree not included in parents’ wills on breach of contract claim. In Re the Estate of Richard N. Panella (N.Y.S., 2017-441/A, September 21, 2022).

When Richard N. Panella and Carol D. Jubenville were divorced in 1985, their divorce degree contained an agreement to execute wills naming their two children as irrevocable beneficiaries to receive 100 percent of his or her gross estate. Each party was to provide the other a copy of the executed will.

Ms. Jubenville remarried in 1992. In 2001, she executed a new will that left personal and household belongings to her children and the children of second husband equally, if her second husband predeceased her. The residue of her estate was devised to an irrevocable trust established by Ms. Jubenville and her second husband that reserved a general power of appointment to change the beneficiaries. Ms. Jubenville testified that she never provided a copy of this will to her first husband.

Mr. Panella executed a will in 2016 that left his entire estate to Ms. Jubenville. Nothing in the court’s record indicates he provided a copy to Ms. Jubenville before he died in 2017.

After Mr. Panella died, Ms. Jubenville executed a new will that left her entire estate to the irrevocable trust established by her and her second husband. The trust does not allow it to be altered, amended, revoked, or terminated. After the death of Ms. Jubenville and her second husband, the trust is to be distributed to trusts for Ms. Jubenville’s children and for children of her second husband, as well as other family members and specific bequests.

In 2019, Ms. Jubenville had to find her divorce decree to document her name change for a new driver’s license and realized for the first time her deceased husband’s will did not comply with the terms of their divorce decree. She informed her children. They responded by petitioning the court to enforce the provision in the divorce decree that obligated their father to bequeath 100 percent of the value of his estate to them.

In the bench trial considering their petition, the children testified that they had no knowledge of the contents of their parents’ divorce decree before their father’s will was submitted for probate.

Ms. Jubenville testified that she had no recollection of who asked for the provision about the wills to be inserted in the divorce decree, but she knew it hadn’t been her.

The children’s theory of recovery is based on a breach of contract, arguing that Mr. Panella breached the terms of the divorce decree when he executed his will in 2016.

A breach of contract requires the existence of a contract, performance under the contract, breach, and resulting damages. As purported third-party beneficiaries, the children have the burden of proving the obligation they seek to have enforced was intended for their benefit.

Yet Ms. Jubenville had testified that she did not initiate or negotiate the part of the divorce decree providing for irrevocable wills. She was the first one to change her will, not Mr. Panella, which indicates that she didn’t intend the benefit for the children they are asking the court to enforce.

The children’s claim also fails for lack of performance. Because Mr. Panella never executed an irrevocable will as required by the divorce decree, that provision of the agreement cannot be enforced by his children.

Based on the evidence before the court, the children have failed to establish a basis for recovery against the estate of their father.

The petition is dismissed in its entirety.

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