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On May 17, 2017, in Tretter v. Tretter,  the Supreme Court of New York, Appellate Division, Second Department, dismissed an action of a son (as plaintiff) against his mother (as defendant) to enforce a side agreement executed between the mother and her late husband in conjunction with a last will and testament (the “Will”), which stipulated that the Will would not be modified unless it was by mutual written consent of the husband and wife.  

Husband and wife entered into a written agreement (the “Agreement”) stating that each will execute a Will that leaves all their properties to the surviving spouse and then to their issue. In addition, husband and wife agreed, pursuant to such Agreement, that “they will not revoke the Wills executed by them this day, modify them by codicil, or execute any further Wills unless it is by the mutual written consent of the parties.”

The husband died two months later and according to the Agreement and the Will, the wife inherited all the properties of the husband. She then made certain inter vivos transfers during her life to her other children other than the plaintiff.

The son sued the mother to enforce the Agreement and therefore sought: (i) to render the prior gifts null and void; (ii) to prevent her from making further gifts during her life time, (iii)to prevent her from revising the Will; and (iv) to recover damages relating to the inter vivos gifts made. On

October 31st, 2014, the Supreme Court, Kings County (Toussaint, J.) denied his motion for a preliminary injunction. The son appealed the decision.

The Appellate court affirmed the lower court’s decision and dismissed the case. The court noted that “there is nothing in the unambiguous language of the agreement which prevents the defendant from making inter vivos gifts or transfers of assets she inherited from her husband” and further went on to preclude the son from maintaining an action predicated upon a breach of the agreement as it relates to the defendant's promise not to revoke or modify her will or execute a new will.

The case illustrates the point that careful consideration should go into succession planning. For example, if the father’s intent was to ultimately leave his assets to his children but to allow his wife to use such assets during her life, among other things, a trust could have been made that could have facilitated such wish.