In this contested administration proceeding, the issue before the court is whether a prenuptial agreement between the decedent, Joseph Menahem (Joseph), and his spouse, Gita Menahem (Gita), should be nullified upon the grounds that it was not properly executed, or in the alternative that it was obtained through fraud, undue influence or Gita lacked the mental capacity to knowingly execute the agreement.

Gita and Joseph executed a prenuptial agreement in January, 2000 in anticipation of their wedding on March 4, 2000. The agreement provided that property titled or held in each party's individual name would always remain the separate property of the title holder and the other party would make no claim of ownership in that property after the marriage. In addition, each party waived the right of equitable distribution, right of election, and the right to inherit in each other's estate for separately owned property. Rights of distribution or inheritance for jointly owned property was not waived in the agreement. The right to demand any enhancement in value in separately owned property in a divorce proceeding was also waived. Property inherited from a family member would remain separate property.

The marriage between Gita and Joseph was Joseph's first marriage. Gita's previous marriage ended in divorce. At the time of the marriage, Joseph owned a home in Brooklyn, New York.

Prior to their marriage, in November 1998, Gita was diagnosed with bipolar disorder with severe psychotic features and had been hospitalized a number of times for treatment. A few months prior to the execution of the prenuptial agreement, on September 18, 1999, Gita was hospitalized due to her mental illness. She was treated and discharged on October 6, 1999, approximately three months prior to the parties' execution of the prenuptial agreement. Gita received outpatient therapy for some time after being discharged from the hospital and was receiving outpatient therapy at the time the parties entered into the prenuptial agreement.

Despite her battle with mental illness, Gita attended school and successfully completed her program during this time. On March 1, 2000, Gita received a proficiency diploma in Medical Computer Applications from the Grace Institute of Business Technology in Brooklyn, New York. Her transcript reveals that the lowest grade she ever received was a "B".

After four years of marriage, Joseph died on May 5, 2004 survived by Gita and his father, Isaac Menahem (Isaac). Joseph had no children and his mother predeceased him. On May 25, [*2]2004, Isaac post-deceased Joseph, leaving a will disposing of his assets among his seven children. Isaac's son, Shlomo Menahem (Shlomo) was appointed the representative of Isaac's estate in Israel, where Isaac resided prior to his death. Shlomo designated his sister, Dorette Dayan, to petition for letters of administration on behalf of their father's estate. Gita filed objections and designated her stepfather, Chaim Schwartz (Schwartz), to cross-petition for letters of administration on her behalf.

Gita alleges that the prenuptial agreement should be nullified because it was not properly acknowledged at the time the parties executed it. She further asserts the agreement was obtained by fraud and undue influence. Finally, Gita asserts that she lacked the mental capacity to enter into the agreement.

On August 9, 2005, Chaim brought a motion for summary judgment seeking to void the prenuptial agreement alleging it was improperly acknowledged, and for a finding that Gita could inherit from Joseph's estate. The Court, finding issues of fact, denied the motion for summary judgment.

The Court had a three day trial at which six witnesses testified. For her case in chief, Dorette testified on her own behalf. For her case in chief, Gita testified on her own behalf. Gita also called Victor Schlesinger, (a certified, licensed real estate appraiser), Dorette (petitioner), Joseph Dayan (her son) and Dr. Stephen Reich, Ph.D (a clinical psychologist). As a rebuttal witness, Dorette called Lyudmila Smirnova (the director of financial aid from Grace Institute of Business Technology).

Dorette submitted into evidence a copy of the prenuptial agreement as an attachment to Dorette's Petition for Letters of Administration. It contains a "Verification" by Joseph and another by Gita. The Joseph "Verification" is notarized by Ivan L. Van Lear and reads as follows:

On the 12 day of January, 2000, before me came and personally appeared JOSEPH MENAHEM, a person know (sic) to me and who identify himself to me and who did sign his name in front of me this 12 day of January, 2000.

The Gita "Verification" was notarized by Sam Zalta (Zalta) and states as follows:

On the 17 day of January, 2000, before me came and personally appeared GITA LAFER, a person known to me and who did identify herself to me and who did sign her name above before me.

(Hereinafter, "Gita's verification statement")

Dorette also offered into evidence an original prenuptial agreement with three pages attached to it.

The first page consists of a notarized acknowledgment signed by Zalta with respect to Gita, and reads as follows:

On the 17 day of January in the year 2000, before me, the undersigned personally appeared Gita Lafer also known as Gita Laffer, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her [*3]signature on the instrument, the individual executed the instrument.

(Hereinafter, "Zalta's certificate of acknowledgment")

The second page is an acknowledgment notarized by Van Lear with respect to Joseph, and reads as follows:

On the 12 day of January in the year 2000, before me, the undersigned personally appeared Joseph Menahem, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual executed the instrument.

The third page contains the following notarized statement by Zalta:

On the 17 day of Oct, in the year 2005, before me, the undersigned, personally appeared SAM ZALTA, the subscribing notary witness to the foregoing instrument, with whom I am personally acquainted, who, being duly sworn, did depose and say that he resides at 1804 East 7th Street, Brooklyn, New York 11223; that he knows Gita Lafer also known as Gita Laffer to be the individual described in and who executed the foregoing instrument, that said subscribing witness was present and saw said Gita Lafer also known as Gita Laffer execute the same; and said witness at the same time subscribed his name as a witness thereto.

(Hereinafter, "Zalta's subscribing witness statement")

The record reflects that the subscribing witness statement and corrected certificate of acknowledgment from Zalta were executed on or about August 2005, five years after the agreement was executed by the parties and over a year after the decedent's death. A subscribing witness statement executed after the death of one of the parties to a prenuptial agreement is valid and may be accepted by the court (see Estate of Saperstein, 254 AD2d 88 [1st Dept 1998]).

Also entered into evidence were affidavits from Zalta, one stating that Gita did acknowledge the prenuptial agreement and one stating that she did not. Zalta was not called as a witness. Instead by agreement, a transcript of Zalta's examination before trial was entered into evidence.

Acknowledgment

A duly executed prenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise. It is presumed to be valid in the absence of fraud (Bloomfield v Bloomfield, 97 NY2d 188 [2001]; Matter of Sunshine, 51 AD2d 326 [1st Dept 1976], affd 40 NY2d 875 [1976]; see Panossian v Panossian, 172 AD2d 811 [2d Dept 1991]; Brassey v Brassey, 154 AD2d 293 [1st Dept 1989]; Estate of Zach, 144 AD2d 19 [1st Dept 1989]).

Estates, Powers and Trusts Law 5-1.1-A(e)(2) establishes the requirements for an effective waiver of a spouse's right of election against the estate of a deceased spouse:

To be effective under this section, a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property. [*4]

As established by Real Property Law §§291, 292 and 304, a conveyance of real property may be proved for recording purposes either by an acknowledgment of the person who executed the conveyance or by the proof submitted by a subscribing witness, that is, a person who was a witness of the execution and who at the same time subscribed his or her name to the conveyance as a witness.

Real Property Law 304 provides:

When the execution of a conveyance is proved by a subscribing witness, such witness must state his own place of residence, and if his place of residence is in a city, the street and street number, if any thereof, and that he knew the person described in and who executed the conveyance.

At trial, Dorette submitted into evidence the prenuptial agreement as described above, with the amended certificates and subscribing witness statement. Certification of the acknowledgment or proof of a writing in the manner prescribed by law is prima facie evidence that it was executed by the person who purported to do so (CPLR 4538; see Matter of Kazuba, 9 Misc 3d 1116(A) [Sur Ct, Nassau County 2005]). Said evidence may be rebutted by clear and convincing proof. It is undisputed that the decedent's signature was properly acknowledged by Ivan Van Lear, the attorney-drafter of the agreement. The question is whether Gita's signature was properly acknowledged or witnessed.

The execution of this agreement may be proved in two ways, either by acknowledgment or in the second manner in which a conveyance of real property could be proved, i.e., by the statement of the subscribing witness (Estate of Saperstein, 254 AD2d 88 [1st Dept 1998] [statement of subscribing witness of waiver of right of election prepared after deceased spouse's death sufficient to prove that waiver was valid]; Estate of Maul, 176 Misc 170 [Sur Ct, Erie County, 1941] aff'd 262 AD 941 [4th Dept 1941], aff'd 287 NY 694 [1942] [subscribing witness' testimony at hearing allowed to prove the waiver of an elective share]; Matter of Felicetti, NYLJ, Jan. 22, 1998 at 31, col 3 [Sur Ct, Nassau County] [motion to dismiss based on invalidity of waiver of right of election as a result of improper acknowledgment denied because notary could supply necessary proof as subscribing witness]; Estate of Beckford, 280 AD2d 472 [2d Dept 2001] [deposition testimony of the attorney who notarized the spouse's signature on the prenuptial agreement created an issue of fact as to whether waiver of right of election is valid]; see, also Matter of Kazuba, supra).

If the acknowledgment is defective, the defect may be cured by the notary supplying the necessary proof as a subscribing witness. Substantial compliance with the statutory requisites of an acknowledgment are sufficient. Where the circumstances adequately disclose compliance with the statutory requirements, the acknowledgment of the signer may take the form of conduct that expressly or impliedly signifies signer's assent (Matter of Kazuba, supra).

The credible evidence shows that Gita's signature was properly acknowledged. Zalta's certificate of acknowledgment (as amended) is in the proper form and is prima facie evidence of execution. The parties also have not disputed that Gita executed the instrument before Zalta and that he observed her execution of it. Zalta's examination before trial shows that the acknowledgment was proper. Zalta testified that Gita asked him to notarize her signature and [*5]that he saw her sign the document (see Exhibit "E", Zalta Examination Before Trial, dated January 18, 2006, p. 18, line 24 and p. 19, line 18). While the word "acknowledge" was not used, this testimony along with Zalta's certificate of acknowledgment clearly shows substantial compliance with the statutory requisites (see Matter of Kazuba, supra).

Even were the acknowledgment improper, the submission of Zalta's subscribing witness statement provides the necessary proof to establish due execution of the prenuptial agreement. The statement clearly complies with the statutory requisites. In addition, Zalta's EBT shows that he witnessed the signatures, contains his place of residence, and indicates that he examined Gita's identification and observed her execute the document (see Exhibit "E", Zalta Examination Before Trial, dated January 18, 2006, p. 15, line 20). Thus, Zalta "knew her to be the person described in and who executed" the document (see RPL 304). While certain sections of Zalta's examination before trial seem to contradict earlier portions, the contradictions appear to be due to the confusion of the objections and certain dialogue between the attorneys. The earlier portions of the examination before trial of Zalta, before the later confusion and disagreements between the attorneys, are clearly consistent with Zalta's certificate of acknowledgment (as amended) and subscribing witness statement. The weight of the evidence clearly supports Dorette's position that the agreement was properly executed by the parties. Therefore, this court finds that the prenuptial agreement was duly executed.

Mental Capacity

The court now turns to the issue of whether Gita had the requisite mental capacity to enter into the prenuptial agreement.

At trial, Gita's attorneys called Dr. Stephen Reich, Ph.D to testify as an expert witness regarding Gita's mental capacity. Dr. Reich is a clinical psychologist, retained by Gita for the purposes of this litigation. Dr. Reich maintains a practice as a forensic psychologist and he serves as one of the clinical directors of an organization that services senior citizens in nursing homes and senior care facilities, although he does not actually provide the services himself. He testified that he never treated Gita and his sole direct contact with Gita was when he interviewed her on January 17, 2006 for 75 minutes (approximately six years after the contract was executed). He indicated that she arrived at the interview 45 minutes after her scheduled appointment time. Her appearance was mildly disheveled. There were no indications in the record that the interview was conducted for any reason other than for his preparation to testify as an expert witness at trial.

Dr. Reich testified that he reviewed Gita's entire medical record, including, but not limited to, the records from 1998, 1999, 2001 (all from South Beach Psychiatric Center) and 2005 and 2006 (both from Maimonides Medical Center). From his review of these medical records and his interview with Gita in 2006, Dr. Reich concluded that Gita suffers from bipolar disorder and a schizophrenia-like process. At the interview, Dr. Reich observed that Gita showed evidence of a thought process disorder, which he asserts means that she has an inability to speak and reason in a logical manner. He further testified that this disorder is not curable. He also testified that Gita suffers from bipolar disorder which is likewise not curable, but medically treatable if the person is medically compliant. A person who suffers from bipolar disorder, but is [*6]medically compliant, he testified, may lead a normal life. Moreover, Dr. Reich testified that as a result of these illnesses, Gita suffers from impaired judgment. She is unable to think clearly enough so that her thought processes are logical and rational.

When questioned regarding the basis for his opinion, Dr. Reich pointed to several entries in the medical records that indicated Gita had been diagnosed with bipolar disorder, that she suffered from and received treatment for depression and took medication for psychosis. For example, on November 13, 1998 the records indicate that Gita suffered from depression and contains the diagnosis of bipolar disorder with psychotic features. On November 14, 1998 and November 15, 1998 the records contain the notation "delusional thinking". On November 18, 1998, the records contain the notation "psychotic". On November 30, 1998, the records indicate that Gita was prescribed Halydol, an anti-psychotic medication and Depicote, a mood stabilizer for bipolar disorder. On December 16, 1998, the medical records indicate a prescription for Depicote and Cogentin, a medication prescribed to counter the side effects of Halydol, an anti-psychotic medication. On September 18, 1999, the medical records indicate that Gita suffered from severely impaired judgment, insight and impulse control. On September 29, 1999, the medical records indicate a diagnosis of bipolar disorder with psychotic features and includes a notation of poor insight. On October 26, 2001, the records again indicate that Gita suffered from severely impaired judgment, insight and impulse control. An entry from October 21, 2004 indicates a diagnosis of schizoaffective disorder. An entry from July 6, 2006 indicates a diagnosis of bipolar disorder with the most recent episode severe with psychotic features.

Dr. Reich further testified that he believed that Gita suffered from the above illnesses in the year 2000 (the same year in which she executed the prenuptial agreement). He testified that the medical records indicated that for two and a half months in 1990 she was hospitalized in Lithuania. However, there is no evidence as to what records contained and it is claimed that the records were not available to them. He concluded that only a severe medical illness would require a two and a half month hospitalization and that hospitalizations of that nature for a person of Gita's age are almost exclusively psychiatric in nature. He also testified that the medical records indicated that she had been diagnosed with bipolar disorder in 1998. Because bipolar disorder is a chronic and ongoing mental disability that manifests at various times in a person's life, Gita had the illness in 2000.

During the trial, Gita's attorney sought to enter Gita's medical records into evidence regarding Gita's mental illness. Dorette's attorney objected. The court allowed the records subject to connection, but reserved decision as to whether the connection was made. Based upon the relevancy of the record to the issues presented, the medical records are admitted in evidence. There was sufficient testimony regarding Gita's mental capacity to warrant admission of the medical records. Gita testified to her hospitalization in 1998 and 1999. Dr. Reich also testified that the illness under which Gita suffers is a chronic and incurable, but nevertheless treatable illness. Therefore, while some portion of the records are more relevant to the underlying circumstances than others, the entire record is relevant to Gita's mental capacity in this proceeding and the entire record is admitted into evidence (CPLR 4518(c). While this court considered the entire record in its decision, more weight was afforded the portions of the record that were closer in time to the execution of the prenuptial agreement.

Gita's medical records show that Gita suffers from bipolar disorder and has suffered from [*7]this mental illness since at least November 13, 1998, when she was admitted to Maimonides hospital where she was diagnosed with bipolar disorder with severe psychotic features. The record also reflects that Gita was admitted to Maimonides a few months prior to executing the prenuptial agreement on September 18, 1999 due to medication noncompliance. The records further show that Gita suffered from impaired judgment. She was discharged on October 6, 1999.

Gita continued to receive outpatient therapy, where the records show that she was again noncompliant with her medications on December 15, 1999 and her judgment was diagnosed as limited. On December 28, 1999, Gita's insight and judgment was fair. Moreover, on January 7, 2000, ten days before Gita executed the prenuptial agreement, Gita's records indicate that she was medically compliant. The records again report medical compliance, four days after Gita executed the prenuptial agreement, on January 21, 2000.

A person is presumed to be competent at the time of the performance of the challenged action and the burden of proving incompetence rests with the party asserting incapacity (Estate of Obermeier, 150 AD2d 863 [3d Dept 1989]). The court must determine whether the individual was unable to comprehend the nature of the transaction and make a rational judgment with respect to the transaction. The Court of Appeals has stated that a contract is invalid if a person entered into it under the compulsion of a mental disease or disorder, but for which the contract would not have been made. Under this standard, nothing less than medically classified psychosis could excuse a person entering a contract (Ortelere v Teachers' Retirement Board of the City of New York, 25 NY2d 196 [1969]; Matter of Goldberg, 153 Misc 2d 560 [Sur Ct, New York County 1992]). Gita has the burden of proving that she did not have the requisite mental capacity to enter into this prenuptial agreement by a preponderance of the evidence (Fleming v Ponziani, 24 NY2d 105 (1969).

While bipolar disorder is a serious mental illness which may in certain circumstances render a person incapable of forming the mental capacity to enter into contracts and agreements, there is no authority to conclude that all persons who are diagnosed as being bipolar lack mental capacity to enter into contracts. Thus, this court is loathe to conclude as a matter of law that all persons suffering from this disorder lack the mental capacity to enter into agreements or conduct their business in their own best interests. Moreover, in light of the evidence that if treated, a person suffering from this disorder may lead a normal life, the court is equally loathe to make such an assumption or assertion. The court is also mindful that a person suffering from this disorder may lack the mental capacity to enter into contracts or even negotiate in their own best interests, because of their inability to think rationally. Thus, it is necessary for the court to assess the evidence presented in each case. In the instant case, based on the credible evidence it is the determination of the court that Gita has failed to sustain her burden of proof that she lacked mental capacity to enter into the prenuptial agreement.

The record shows that Gita was diagnosed with bipolar disorder and was hospitalized in November 13, 1998 and September 18, 1999. On October 6, 1999, she was deemed sufficiently recovered from her episode to be discharged. Her mental status was alert, in good control with no overt signs of psychotic process on the date of her discharge. She continued to receive therapy after she was discharged. On January 7, 2000, the records report that she was medically compliant. The records also report medical compliance on January 21, 2000. Gita executed the [*8]prenuptial agreement on January 17, 2000. At the same time, Gita was also successfully completing her program with the Grace Institute of Business Technology. The records from the institute show that between October 1999 and March 2000, Gita was completing her courses and taking exams. She completed her courses and received a certificate, her transcript reflects grades of no lower than "B".

The record further reflects that Gita worked as a secretary for a half a year from 1999 to 2000, as a healthcare aide from 2000 to 2001 and as decedent's assistant in his photography business from 2001 to 2004.

Dr. Reich testified that a person who suffers from bipolar disorder, who is medically compliant may lead a normal life. The record reflects that before and after the prenuptial agreement was executed by Gita, she was medically compliant. Moreover, Gita's medical records report that her judgment was fair a little over two weeks prior to her execution of the agreement. From this evidence, the court may infer medical compliance at the time of the execution of the agreement.

Despite her illness, Gita appeared to engage in the normal functions of life. The record reflects that she attended school and received good grades for her work. The record also reflects that Gita was gainfully employed during the time that she entered into the agreement. Accordingly, based upon the medical evidence submitted, the court finds that Gita did not suffer from impaired judgment at the time she entered into the prenuptial agreement and that Gita retained the necessary mental capacity to enter into the prenuptial agreement.

Undue Influence

Gita has been equally unsuccessful in meeting her burden of proof regarding her allegation of undue influence. To prove undue influence, it must be shown that the influence exercised amounted to moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the contracting party to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (Children's Aid Soc. of City of New York v Loveridge, 70 NY 387 [1877]). The spouse who challenges a prenuptial agreement has a threshold burden of proving by a fair preponderance of the credible evidence a fact-based particularized inequality between the parties that demonstrates probable undue influence and unfair advantage. If the initial burden is proven then the burden shifts to the proponent of the prenuptial agreement to prove that the agreement was free from fraud deception and undue influence (Estate of Grieff, 92 NY2d 341 [1998]).

The factors considered by the court are: (a) detrimental reliance on the part of the poorer spouse; (b) relative financial positions of the parties; (c) formality of the execution ceremony; (d) full disclosure of assets as a prerequisite to a knowing waiver; (e) physical or mental condition of the objecting spouse at the time of execution); (f) superior knowledge/ability and overmastering influence on the part of the proponent of the agreement; (g) present of separate, independent counsel for each party; (h) circumstances under which the agreement was proposed and whether it is fair and reasonable on its face; and (I) provision for the poorer spouse in the will (see Estate of Buzen, NYLJ, Apr. 2, 1999, at 35, col 1[Sur Ct, Nassau County]).

Again here, the weight of the evidence is not in Gita's favor. There is insufficient evidence of undue influence to shift the burden of proof to Dorette. [*9]

There is no evidence to show that Gita relied on this agreement to her detriment. There is no evidence that she gave up any rights that she possessed prior to the marriage to become decedent's wife. While there was a disparity in the financial positions of the parties, this circumstance did not appear to affect the parties' agreement positions. The decedent owned a home prior to marrying Gita. He purchased the home with assistance from his family. Gita had about $11,000 at the time of the marriage.

As for the execution, both parties executed the agreement at different times and in front of different notaries public. It is also not contested that the decedent's signature was acknowledged. Moreover, the record reflects that Gita also signed the agreement in front of Zalta, the notary who took her signature and later verified his status as a witness by supplying a subscribing witness affidavit.

The agreement itself reflects that the parties had some discussion of their respective financial positions. The agreement discloses that decedent owned a business and a house. The agreement also discloses that Gita was attending school.

While Gita has argued that her mental condition did not allow her the requisite capacity to enter into the agreement, her medical records reflect that at the time that she entered into the agreement, she was receiving treatment, medically compliant and functioning as a student. Under the circumstances in this case, the court has found that Gita had the requisite mental capacity to understand the nature of the agreement and its consequences. There is also no evidence that decedent exerted undue influence over Gita in obtaining her signature on the agreement.

While it is unclear how many attorneys Gita visited prior to her execution of the agreement, it is undisputed that the attorney-drafter of the agreement, Ivan Van Lear, instructed the couple to seek legal advice from another attorney for Gita. It is also clear that Gita did seek legal advice from an attorney and as a result, a change was made to the agreement prior to Gita's execution.

Dorette testified credibly and without being controverted that Gita was willing to enter into the agreement in order to ease the decedent's family's reservations regarding the upcoming wedding. The agreement appears to maintain the pre-marital status quo in the event of divorce or death. The agreement further provided for a waiver of inheritance rights for separately owned property. There is no provision of waiver for jointly owned property.^[FN1]

Accordingly, this court declines to invalidate the prenuptial agreement based upon Gita's claim of undue influence.

Fraud

Gita alleges the agreement was induced by fraud. To prove fraud, an individual must show a misrepresentation or a material omission of fact which was false and known to be false by the other party, made for the purpose of inducing the individual to rely upon it, justifiable reliance of the individual on the misrepresentation or material omission, and injury (Whitehall v Town House Equities, Ltd, 8 AD3d 367 [2d Dept 2004]; Ozelkan v Tyree Brothers [*10]Environmental Services, Inc., 29 AD3d 877 [2d Dept 2006]). The burden of proving the alleged fraud by clear and convincing evidence is on the party seeking to invalidate the agreement (see Grieff, supra; Matter of Gross, 242 AD2d 333 [2d Dept 1997], lv denied, 90 NY2d 812 [1997]).

In her pleadings, Gita's testimony that she was misled to believe that the prenuptial agreement was only applicable in the event of divorce is not credible. Gita also testified that she understood the agreement to be applicable in the event of divorce. No evidence was presented that the decedent or anyone else fostered this belief. No evidence was presented that anyone purposely misrepresented the agreement to her or omitted a portion of the agreement. There is no dispute that Gita signed the agreement and had an understanding of its contents.

Gita was given the opportunity to and did visit an attorney regarding the terms of the agreement. Gita has simply failed to meet her burden of proof regarding her allegations of fraud, and the court declines to invalidate the agreement on this ground.

Conclusion

The prenuptial agreement between the decedent and Gita is valid. In the agreement, Gita waived her right of inheritance for property owned separately by the parties. The property of the decedent is a house located in Brooklyn, New York. There has been no allegation regarding any jointly owned property. Inasmuch as Gita has waived her rights of inheritance, decedent's property passes by the laws of intestacy into the estate of decedent's post-deceased father.

Accordingly letters of administration shall be granted to Dorette Dayan, as a designee of the personal representative of the estate of Isaac Menahem, decedent's post-deceased father, upon duly qualifying according to law.

Settle decree.

____________________________________

August, 2007