In Giteison v. Quinn, 987 N.Y.S.2d 329 (App. Div. 2014), the decedent, Dinko, had nine siblings; he died leaving no widow or children of his own.

He executed a will in 1990 that left certain real property to two of his sisters – Gitelson and Quinn – and a nephew in equal shares, with the rest of the estate to be divided equally between Gitelson and Quinn. In 1991, Dinko executed a second will in which he left all of his estate to Quinn.


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Dinko died in 2003. At the time, the parties had forgotten about the 1991 will and began to proceed with the division of the estate pursuant to the 1990 will. A copy of the 1990 will was in the plaintiff’s possession. While attempting to locate the original 1990 will, a copy of the 1991 will was found. Quinn then made efforts to find the original 1991 will to no avail. The parties consulted with a lawyer and subsequently made an oral agreement to go through a lost will proceeding to probate the 1991 will.

Gitelson agreed to support Quinn’s efforts to probate the 1991 will and in return Quinn agreed to share the estate equally with Gitelson. Both parties mistakenly believed that the lost will proceedings were the only manner of probating the estate and avoiding intestate distribution.

After the commencement of the lost will proceedings, the original copy of the 1991 will was found. Quinn sent Gitelson a check for the expenses Gitelson incurred from the proceedings and decided to keep the entire estate, which was worth more than $1.2 million.

An action for breach of contract followed, Gitelson sought one-half of the value of the estate with interest. The New York Supreme Court dismissed the complaint on the grounds that at the time the agreement was made, the parties were under the mistaken belief that the 1991 will was missing.

Gitelson appealed, and Quinn asked for summary judgment on the grounds that there was mutual mistake. The New York Supreme Court, Appellate Division, held that summary judgment was not warranted because there was an issue of material fact as to whether Quinn was negligent in searching for the decedent’s original will.

The dissent argues that there is no reason to go into a mutual mistake analysis as the oral agreement was made based on a contingent event that never came to fruition. The agreement was that if the lost will proceedings were successful, the estate would be equally shared. The dissent argues that because the 1991 original will was found before proceedings ever commenced, the contingent event never materialized. Therefore, the defendant had no obligation to share the estate. Accordingly, there is no reason to go into a mutual mistake analysis.


Reference: Elangie Lozada, Section of Litigation, Trusts & Estate Litigation, American Bar Association

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