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Court Discusses Appeal Based on Forum Non Conveniens.


The case involves three issues, first, the probate of a will despite absence of witness to testify for the authenticity of the will. Second, the disallowance of a will alleged to have made under undue influence by the decedent’s heirs. Third, the denial of appeal based on forum non conveniens.

On the first issue, the Court ruled that the propounded instrument offered for probate dated March 28, 1925 was executed thirty-eight years ago. Proof has been submitted that one of the subscribing witnesses is deceased and the whereabouts of the other witness is unknown. The genuineness of decedent’s handwriting and of the deceased witnesses has been proved.

The missing witness had been associated with decedent for approximately two years prior to the execution of the propounded instrument. Thereafter, he had expressed an intention to return to his native country of Scotland. Due to the long span of years since the execution of the instrument proof of the handwriting of the witness could not be obtained despite diligent efforts by proponent to do so.

The authenticity of an ancient document over 30 years old under certain conditions such as its unsuspicious appearance, place of custody and other circumstances are deemed sufficient to establish its genuineness of execution without proof of the handwriting thereon. The same rule applies to an ancient will. The propounded instrument contains an attestation clause subscribed by the witnesses, which is entitled to great weight.

In some cases, the courts refuse to allow the probation of a will due to undue influence made by the heir against the decedent.

The Court is satisfied with the genuineness of the instrument, the validity of its execution and the competency of the decedent. The testimony and proof of handwriting of the subscribing witness whose whereabouts is unknown is dispensed with. Probate of the instrument is decreed.

On the second issue, the Court ruled, after a jury trial on framed issues that the probate of the will of Mrs. MJ, must be denied. Here, the jury found that the execution of the instrument offered for probate was caused or procured by undue influence. The surrogate, in denying a motion to set aside the verdict and for a new trial, held that there was ample evidence to sustain the verdict. Hence, the will is denied tpobate.

On the third issue, the defendant appeals from an order of the Supreme Court, which denied its motion to dismiss the complaint on the ground of forum non conveniens.

After hearing was conducted, the Court order for the reversal of the ruling and the motion to dismiss the complaint is granted.

The common-law doctrine of forum non conveniens, also articulated in CPLR 327 (a), permits a court to stay or dismiss actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere. In a motion to dismiss the complaint on the ground of forum non conveniens, the burden is on the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation in that forum.

The court has discretion whether to retain jurisdiction. The court’s determination will not be disturbed on appeal unless the court has failed to properly consider all of the relevant factors. Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying action, and the burden which will be imposed upon the New York courts, with no one single factor controlling.

The Supreme Court failed to indicate that it considered any of the relevant factors. These factors strongly militate against adjudicating the action in the Supreme Court. It is undisputed that the plaintiff’s legal malpractice and recoupment claims against the defendant all arose out of probate actions undertaken in Montreal, Canada, by Canadian attorneys, to which Canadian law would be applicable. Even if the plaintiff possesses residences or domiciles both in New York and Canada, she already had availed herself of Canadian courts in the past, not only in the related probate action, but also in an almost identical matter involving the payment of legal fees for the probate matter.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion to dismiss the complaint on the ground of forum non conveniens.

If you are dealing with complex issues regarding the probate of a will you may contact the Kings County Probate Attorneys of Stephen Bilkis & Associates for clear and simple legal solutions.

The attorneys of Stephen Bilkis will assist you in all problems arising from the property of your deceased loved one. Call us now.

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