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Court Considers Whether to Reopen Probate After a Year- In re Carney’s Will, 220 N.Y.S.2d 869 (N.Y. Surr. Ct. 1961)


In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a  party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed.  This means that all interested parties must be notified and given the opportunity to object to the will.  Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors.  In addition to listing the names of interested parties on the citation, the petitioner must send each of them a  notice known as “citation.”  This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings.  For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will.  However, anyone entitled to a citation can waive it.  On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate.  This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently.  Three days after the decedent passed away, his funeral was held.  At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it.  E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it.  After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver.  The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

The decedent’s will was admitted to probate and executors were appointed. About a month later, E. Carney learned that the will had been admitted to probate.  He got a copy of the will from the Surrogate’s Court. While he was upset, he did not file a petition to object to probate or do anything right away.  Instead, he waited a year and then petitioned the court to reopen probate so that he could contest the will.  In the meantime, the estate had been closed.

In his petition, E. Carney did not provide specific reasons for objecting to the will. Typically, grounds for contesting a will include lack of testamentary capacity, duress, undue influence, insufficient execution, or fraud. However, E. Carney did not allege any of these grounds, or any other ground for contesting the will.

The Court denied E. Carney’s petition, noting that the petitioner did not provide a basis for objecting to the will.  It further noted that it had been a year since the will was admitted to probate and that E. Carney was in possession of all facts related to probate.  In other words, there is no evidence that anyone tried to commit fraud by keeping any facts related to the estate away from E. Carney.  In addition, the court did not find anything to substantiate an allegation that the waiver of citation was obtained fraudulently.  Thus, the court did not find any facts to justify granting E. Carney’s petition.

Because the goal of the probate process is for probate procedures to be conducted in an orderly fashion and for probate decrees to be final, it is important for anyone who questions the validity of a will or any aspect of the probate proceeding or administration process to act immediately.  Although not impossible, once an estate has been closed, it is difficult to re-open a probate case.

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