Konstantine "Kosta" Demiris Prevails on Will Dispute and Abatement

Konstantine “Kosta” Demiris from Demiris & Moore netted a victory for his client Margaret McGushin in a civil dispute involving a will contest over a New York Condo devised to her by her sister, Rose.  In the case of Estate of Rose G. McGushin, Plumas County Superior Court Case # GN PR13-00028, the Petitioner Andrew D. Smith, who was also the executor of the Decedent’s will, petitioned the Court to contest the express language in the will.  At issue were terms stating that a New York condominium was to be “passed on to Margaret” so long as she could manage “this responsibility” or if not Margaret then to Andrew Smith and if not Andrew, then to other named contingent beneficiaries. 

Andrew (Rose’s boyfriend) initially stated in writing that Margaret would inherit the property, then changed his mind and stated he would inherit the property because Margaret failed to manage the responsibility, then changed his mind again and petitioned as executor under the theory that the property should pass to no-one but rather by intestate succession claiming the language was vague and unenforceable.  (Ironically, this would still have the property go to Margaret, the sole surviving heir of Rose by way of intestacy).  The estate consisted of two real properties (one each to Andrew and Margaret) and sparse cash assets.  Andrew, who was provided another real property under the will, wished to escape paying the administrative costs of the estate because under the CA laws of abatement he would be responsible as a non-relative specific beneficiary for anything that the residue of the estate was unable to cover. 

Naturally, Margaret objected and claimed the language was clear and unambiguous; that Rose intended for the property to go to Margaret; and Andrew should pay for the costs of abatement.  The matter went to trial.  At trial, the Court upheld the language of the will as clear and unambiguous and held that the terms would be interpreted under their ordinary meaning under the Probate Code.  Andrew was held responsible for the costs of abatement as a non-relative with lower priority under the abatement statutes.