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Volume 1 - Opinions of Counsel SBEA No. 41

Opinions of Counsel index

Aged exemption (ownership requirement) (property devised to widow and four children) - Real Property Tax Law, § 467:

Where title to property becomes vested in a widow and her four children by the will of the deceased husband, and the children quitclaim their interest in the property to the widow, the widow does not meet the five year requirement of section 467 of the Real Property Tax Law. If, however, prior to the issuance of the quitclaim deed, there was some act of renunciation on the part of the four children with respect to their rights under the will, the widow as the sole surviving beneficiary would meet the length of ownership requirement.

Our opinion has been requested as to whether a widow meets the ownership requirement of the aged exemption statute where title to property is devised to her and her four children upon the death of her husband, and the four children quitclaim their interest in the property to the widow.

Section 467 of the Real Property Tax Law provides that real property owned by one or more persons, each of whom is sixty-five years of age or over, who meet the qualifications of that section, shall be exempt from taxation by any municipality in which it is located to the extent of fifty percent of the assessed valuation of the real property provided that the municipality in which the property is located adopts a local law, ordinance or resolution after holding a public hearing on the subject granting the exemption. One of the requirements of section 467 is that no exemption shall be granted unless title to the property shall have been vested in the owner or all of the owners of the property for at least 60 consecutive months prior to the date of making application for the exemption (Real Property Tax Law, section 467, subdivision 3(b)).

Subdivision 3(b) of section 467 was amended by chapter 752 of the Laws of 1967 to provide that where title to property was vested in the name of a deceased husband or wife and then becomes vested solely in the surviving spouse by will or operation of law, the period of ownership of the deceased spouse shall be counted for purposes of the sixty-month ownership requirement.

Thus, the period of ownership of a deceased spouse may be counted for purposes of the sixty-month ownership requirement when title vests solely in the surviving spouse by virtue of devise on the date of the deceased spouse’s death. Under the facts presented it would appear that title vested in the surviving widow and their four children on the date of the decendent’s death. The widow became the sole owner only after the children transferred their interest in the real property to the surviving widow and in such case the widow does not presently meet the five year ownership requirement of section 467.

Under case law, an intended beneficiary under a will may renounce his rights (see Commentary by Samuel Hoffman following section 4-1.3, Estates, Powers and Trusts Law, Vol. 17B, McKinney’s Consolidated Laws of New York, p. 541). Such renunciation is retroactive to the date of a decendent’s death and there is no vested title on the intended beneficiary. Thus, where all but one of the intended beneficiaries under a will renounce their rights, the renunciation becomes retroactive to the date of death of the testator or person leaving the will, title to any property in the decedent’s estate will not have vested in those intended beneficiaries who renounced their rights, and the entire title is considered to have vested under the will in the remaining intended beneficiary who has not so renounced his rights under the will. The renunciation of a devise must be express, clear, or unequivocal, as by some affirmative, positive or overt act or statement of the beneficiary (In re Wilson’s Estate, 298 N.Y. 398, 83 N.E.2d 852). It would appear that the form of renunciation need not necessarily be by deed or matter of record but may be sustained by a verbal disclaimer or by proof of acts inconsistent with acceptance (see Albany Hospital v. Albany Guardian Society, 214 N.Y. 435, 108 N.E. 812, and cases cited therein).

From the facts presented it cannot be determined whether in the first instance there had been a renunciation by the four children of their rights under the will. Ordinarily, a transfer of real property devised under a will would continue an acceptance of such devise. In this regard attention is called to the case of Burritt v. Silliman, 13 N.Y. 93, which is concerned with the renunciation by an executor and trustee of his rights under a will, where the court at page 97 cites and quotes from several early common law cases. The court states:

“In Crewe v. Dicken (4 Ves., 97), a trustee, who had executed a deed of release to his co-trustees instead of disclaiming, was held to have thereby accepted the estate; and the chancellor on that ground refused to compel a purchaser to take the conveyance of the other trustees, to whom the release had been executed, unless the trustee who had released would join in the receipt for the purchase money. Lord Eldon afterwards, in Nicloson v. Wordsworth (2 Swanst., 387), thought this case rather an over refinement, and that a release, intended as a disclaimer, might well enough in equity be deemed to operate only as a disclaimer; but his argument shows that a disclaimer was not supposed to have any effect as a conveyance of an estate, it having neither parties to whom the estate should pass, nor words of conveyance. In Townson v. Tickell (3 B. & Ald., 31), the question arose whether a devisee in fee could disclaim by deed; it being contended that a disclaimer in a court of record could alone suffice to defeat the estate. All the judges rejected this doctrine, and held that the disclaimer by deed was sufficient. This was held, not upon the ground that the deed of disclaimer operated as a conveyance, but that it was a solemn instrument asserting the disagreement of the party.”

It is noted that in the factual situation presented here the quitclaim deed was issued to the sole remaining beneficiary under the will, the surviving widow. In view of this and taking into consideration the above quoted material, if concomitant with or prior to the issuance of the quitclaim deed there was some act of renunciation on the part of the four children with respect to their rights under the will, it is believed that it could be argued successfully that there had been no acceptance by the children under the will.

Accordingly, if there had been some act of renunciation on the part of the four children with respect to their rights under the will, the widow as the sole surviving beneficiary acquiring sole title under such would meet the length of ownership requirement of section 467.

April 9, 1971

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