In re the Estate of Gardella — 208 A.D.2d 836

Majority

p. 836

In the Matter of the Estate of Michael Gardella, Deceased. Kevin Wynne, Appellant; Viola Petersons, Respondent.

[618 NYS2d 561]

In a proceeding for the construction of the decedent’s will, the petitioner appeals from an order of the Surrogate’s Court, Putnam County (Braatz, S.), dated March 16, 1993, which construed the will as creating a life estate in the decedent’s home at 3 Cornnall Road, Patterson, New York for the benefit of the respondent Viola Petersons.

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Putnam County, for a hearing in accordance herewith.

An examination of the contested paragraph of the decedent’s will raises questions of fact as to whether or not the decedent intended to create a right of occupancy or a life estate for the benefit of the respondent. Accordingly, an evidentiary proceeding is warranted (cf., Matter of Lezotte, 108 AD2d 1052 ; Matter of O’Neil, 8 AD2d 631 ). Pizzuto, J. P., Santucci, Hart and Goldstein, JJ., concur.

Cases cited

In re the Estate of Lezotte 108 AD2d 1052 N.Y. App. Div. 1985-02-28 p. 836