Defendant's motion in limine to bar testimony by plaintiff concerning conversations with decedent regarding her will and estate plan is granted. Plaintiff's testimony concerning conversations with decedent regarding her intention that he receive half of her estate after his divorce was final is barred by CPLR 4519, since the testimony would be offered against defendant, decedent's survivor, who derived her interest in decedent's assets from decedent.
However, CPLR 4519 does not bar the testimony of third-party witnesses concerning conversations with decedent about her will, estate plan, or the alleged oral agreement between plaintiff and defendant to transfer to plaintiff half of decedent's assets after his divorce, since the third parties do not have an interest in decedent's estate. Testimony by plaintiff concerning the alleged oral agreement is proper since those conversations do not constitute extrinsic evidence in derogation of the will and do not call into question whether the will reflected decedent's intentions. Although extrinsic evidence may not be used to challenge a clear and unambiguous will, here, the issue is whether the parties had an oral agreement that required defendant to transfer certain property or assets to plaintiff after distribution of the estate.
Castellotti v. Free, NY Slip Op 00045 (1st Dep't January 9, 2024)
