A New York Probate Lawyer said one of the decedent’s sons, the objectant in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the probate proceeding, has now noticed for settlement a decree dismissing the probate petition. He has also moved to have his application for letters of administration restored to the calendar. The decedent’s daughter, the proponent in the probate petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her probate petition.
A New York Estate Lawyer said that the decedent died in June 2000 survived by three children. The probate petition was filed in October 2001. The propounded instrument provides for an equal distribution of the estate between the two children other than the objectant. It appears from allegations made in the pending applications that the decedent’s other son, the beneficiary of 50% of the estate under the propounded instrument, died in April 2006 and that he was not married and did not have any children.
Suffolk County Probate Lawyers said the objectant made several applications in the probate proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on this issue directed the production of certain documents by the proponent by August 2005. After the August deadline passed without production of the additional documents, the objectant moved to dismiss the probate petition and the proponent’s counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court’s directions.
Westchester County Probate Lawyers said in the absence of any opposition, counsel’s application was granted and an order was entered which not only relieved counsel from representing the proponent, but also provided that all proceedings were stayed for 30 days and that “the objectant’s application to dismiss the probate petition shall be submitted without opposition at the expiration of the thirty (30) day period unless papers in opposition had been filed or an application had been made for an extension of time within the period of the stay. “In the absence of any opposition or a request by the proponent for an extension of time to oppose the application to dismiss the probate petition, the court rendered a decision in January 2006, granting the application on the grounds that the proponent had failed to produce documents pursuant to the direction of the court and had failed to diligently prosecute the probate proceeding.
The proponent’s excuse for failing to respond to the disclosure demand or to oppose the motion to dismiss the probate petition is that she was the only one who could care for her dying brother. She avers that now that he is deceased, she can attend to the probate proceeding. Moreover, she now submits a sworn statement that “the documents requested by the objectant cannot be located as said documents were discarded due to their physical condition.
Although the court has no reason to doubt that the proponent found herself in trying circumstances as a result of her brother’s illness, this circumstance does not give the proponent a license to ignore the court’s directions with impunity and does not warrant the expenditure of judicial resources to re-examine the applications that were originally ignored by the proponent.
Thus, the objectant will never receive the documents that he requested and, to date, the proponent has not stated exactly when the documents were discarded. Although it appears from portions of the documents submitted by the proponent that someone with legal experience assisted her in opposing the instant applications, she purports to be representing herself. This pro se representation in the will contest, which as a result of the death of one brother now appears to involve only the proponent and the objectant, renders it unlikely that the proponent would be able to expeditiously conclude the probate proceeding should the court excuse her default in opposing the application to dismiss the probate proceeding and, upon reargument, deny that application.
Given the history of this case and notwithstanding the reluctance of the court to deprive any person of the opportunity to have her day in court on the merits, the court is constrained to hold that the conduct of the proponent during the more than four and one half years that this probate proceeding has been pending does not justify reversing the prior dismissal of that the probate proceeding based upon the proponent’s failure to diligently prosecute it and to produce documents pursuant to the court’s directions.
The decree that was noticed for settlement by the objectant provides that the propounded instrument is a “forgery.” Although the objectant made that allegation in his motion, the court did not grant the application on that basis. Consequently, in accordance with the court’s January 23, 2006 decision, the decree entered simultaneously with this decision provides that the probate petition is dismissed due to the proponent’s failure to diligently prosecute the proceeding and her failure to produce documents pursuant to the court’s direction.
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