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Grandchild of Decedent Files Will Contest

A woman has petitioned the court to vacate the probate of a will of a deceased person whom she is not related to and to permit her to file objections to the validation. The deceased man’s will was admitted to validation by the court and the estate was distributed in April, 2006.

According to records, answers and objections to her petition were filed by the executor, a grandson of the decedent, and two other grandchildren. Following a conference with the court, the parties attempted to reach a settlement, but were unsuccessful. Thereafter the matter was submitted to the court for a decision on the papers, including a reply and an additional affidavit in support of the petition.

According to a New York Probate Lawyer, the Petitioner raises several arguments in support of the relief requested. Primarily that she is in possession of a later will, in which she is named executor and a beneficiary. She states that she was neither cited nor waived citation in the proceeding which granted validation to the 1992 will, and that she intends to file objections to the validation based on the later will. She also alleges that the deceased, who died while an inpatient at a nursing home in New Jersey, was a resident of Manhattan, and not of Rockland County as alleged in the petition which resulted in the validation decree, and that, therefore, the proceeding should not have been brought in this court. The Petitioner filed the purported will in this court and filed her petition to vacate validation. The respondents, by their answer and objections, allege that the petition should be denied because the petitioner is guilty of laches, based on her unexplained and unjustified delay in offering the purported later will for validation and in bringing the instant proceeding, which will result in substantial prejudice to them if she is successful. They further argue that petitioner is unable to demonstrate a likelihood of success on the merits, because the 2001 purported will is not likely to be admitted to validation. They maintain that the 2001 document is suspicious on its face, that the deceased lacked sufficient capacity to execute a will in 2001 and that the 2001 document was the product of undue influence.

NYC Probate Lawyers said that in her reply, the petitioner counters that she is not guilty of laches, that the court should consider the new evidence which is the 2001 purported will, offered as a basis to vacate the decree, that the delay was not unreasonably long, and that the respondents have unclean hands because they were made aware that the 2001 document existed by letter date. She also avers that her attorney was delayed in filing a validation petition because he had difficulty in obtaining a certified copy of the death certificate, and that the attorney filed a notice of appearance in the validation proceeding. She also denies respondents’ claims of lack of sufficient capacity to execute a will and undue influence and alleges that the execution of the 2001 document was supervised by an attorney-draftsman.

The Respondents, in their additional reply, argue that the presumption of undue influence in the case must be overcome by the petitioner in order to demonstrate a likelihood of success on the merits, and that she has failed to do so. They allege that the attorney-draftsman of the 2001 document was or is petitioner’s attorney, that petitioner had a confidential relationship with the deceased and that the deceased would not have been physically able to attend the execution of the will unless the petitioner had accompanied him. They also state that the petitioner has failed to submit sworn statements from herself and the attorney-draftsman to disprove the allegations of undue influence. Finally, they argue that petitioner’s present situation is one of her own making, since she failed to do anything to preserve her rights before the validation of the will was final, despite being in possession of the 2001 document and being aware that there was a pending proceeding.

NY Probate Lawyers said that after the additional reply was filed, the petitioner submitted an affidavit from the attorney draftsman who was one of two witnesses to the 2001 document, attesting to its due execution. The other witness is deceased. Although leave of court was not obtained before filing this affidavit, the court will accept it, for whatever value it has.

An application to vacate a validation decree is addressed to the discretion of the court, and the decree should be vacated only in extraordinary cases. To justify opening or vacating a decree admitting a will to validation, a petitioner must show to the satisfaction of the court that she has standing, facts sufficient to demonstrate a substantial basis for contesting the will, and a reasonable probability of success on the merits. In the present case, respondents have raised the defense of laches to the petition. A court may refuse to vacate a validation decree if unreasonable delay exists to such an extent that granting the relief would be unjust and inequitable. What constitutes unreasonable delay depends on the circumstances of a particular case and rests in the discretion of the court.

The facts as presented here demonstrate that petitioner comes before the court with less than clean hands. She has failed to explain why she did not file objections to the validation of the earlier will before the decree became final. Clearly she could have done so. Doing so would have caused the validation to be held in suspension until the validity of the 2001 document was determined. She has not offered any valid excuse for failing to act in a timelier manner. The excuse that her attorney had difficulty obtaining a certified copy of death certificate is meritless; the court already had a certified copy of the death certificate on file, and another would not have been required. Her assertion that the 2001 document is new evidence entitling her to relief is totally without merit. The section which provides for relief from a judgment or order in a civil action specifically refers to newly-discovered evidence which could not have been discovered in time to move for a new trial. The document in question is not newly discovered, since petitioner has had it in her possession presumably since the death.

In the instant case, petitioner has failed to demonstrate that she is entitled to the relief requested. Whether the court labels her actions a waiver, or determines that she is guilty of unreasonable delay, the fact remains that petitioner has provided no explanation for her delay of over ten months from the death, eight months after validation was granted, and four months after she notified respondents that she had a purported later will, to take any action to preserve her position. At the very least she should have filed the will with the court and thereby stopped the validation from proceeding until the court had obtained jurisdiction over all parties adversely affected by the 2001 document. By awaiting the outcome of the proceeding and then attempting to assert her rights, the court finds that she effectively waived her right to object to the earlier will.

In addition petitioner has failed to overcome respondents’ serious allegations concerning undue influence and decedent’s lack of testamentary capacity, and has thus failed to demonstrate a likelihood of success on the merits. And, finally, the prejudice to respondents, who relied on the validity of the decree, would be very great. The court therefore finds that she is guilty of unreasonable delay.

Finally petitioner’s contention that the validation should be vacated because the deceased was not a resident of Rockland County is without merit. This court had jurisdiction of the properties of the deceased who was a resident of New York. Even if his residence at the time of death was Manhattan, as petitioner alleges, that is a question of venue, not jurisdiction. Once validation was granted by the court, it court retains jurisdiction of the properties for all other issues related to the properties. The petition to vacate validation is denied.

At Stephen Bilkis & Associates, their legal team will make sure that your hard earned money will be given to the right persons.

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