Opinion
April 21, 1986
Appeal from the Supreme Court, Westchester County (Buell, J.).
Judgment affirmed, with costs.
To be enforceable, an agreement to make a testamentary provision of any kind must be in writing and signed by the party to be charged (see, EPTL 13-2.1 [a] [2]; Dombrowski v. Somers, 41 N.Y.2d 858, 859). In the instant case, the plaintiff produced no such writing or memorandum signed by the decedent, her uncle, to support her claim that he had promised to make her the sole beneficiary under his will. Consequently, her cause of action to compel specific performance of a contract to make a will must fail.
Furthermore, the evidence adduced at the trial was insufficient as a matter of law for the imposition of a constructive trust upon the estate of the decedent which passed under the will which was admitted to probate (see, Oursler v. Armstrong, 10 N.Y.2d 385). There was no evidence, for example, that the decedent had promised not to alter or revoke his earlier will. Even assuming, arguendo, that a moral obligation existed in this case, that "is not enough to set a court in motion to compel the devolution of property in a certain way" (Oursler v. Armstrong, supra, at p 391). Consequently, the plaintiff failed to sustain her burden of proof with respect to her cause of action for the imposition of a constructive trust, and the complaint was properly dismissed. Niehoff, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.