Edward Rogowsky died in March 2001 after leaving the stock in his Brooklyn coop to his life partner of fifteen years, Peter McGarry. The decedent’s will also named McGarry as his executor and made the plaintiffs — his two sons– the alternate residuary beneficiaries of his will but left them nothing of value. One would think that after decedent’s sons had consented to the admission of the will to probate and defendant’s appointment as executor, they would not have sued the defendant for failing to honor an oral promise that they alleged he had made to honor a wish of the decedent to bequeath his interest in the apartment to his sons in exchange for their promise not to contest the will. It took them nearly six years to mount this challenge.

The New York State Appellate Division has affirmed Suffolk County Supreme Court Justice Melvyn Tanenbaum’s decision in Rogowsky v. McGarry 865 N.Y.S.2d 670 which granted most of the defendant’s motion to dismiss plaintiffs’ action against him. The court found that there was no enforceable oral agreement between the parties . In the absence of a clear and unambiguous promise made by the defendant, the plaintiffs had no way of establishing that he was estopped from keeping the proceeds of the sale of the apartment (as he appeared to be entitled to do pursuant to the terms of the will) . The court also found that the sons had failed to set out any viable claim for fraud and unjust enrichment –claims which frankly seem just a bit far fetched in view of the fact that they, themselves, had consented to the will’s admission to probate.

Significantly, the court noted that the plaintiff’s never filed a petition to revoke their waivers and consents to the appointment of the defendant as the decedent’s executor. It must be noted that such a petition would likely be an uphill climb and would have been a difficult hurdle before the already tough prospect of a will contest. It certainly seems, however, that this was a case where the plaintiffs had always harbored strong disagreement for the terms and conditions of their father’s will and the fact that his partner would be inheriting the property and they would receive nothing. They had to have been angry that their father had evidently found it easier to make a promise to them that contradicted the terms of his will without confronting them about his true intentions which were clearly set forth in the document.

The plaintiffs  also failed to confront this situation head on. They had a clear choice of either accepting the terms of their father’s will or of contesting the will outright. They obviously did neither.While a will challenge is never an easy undertaking, an objectant’s chances will always be better by mounting opposition immediately when the will is offered for probate.