Matter of S.
2017 Slip Op 97446
Decision and Order
This is an appeal from an Order dated 1/11/16. The order vacated the determination of an order dated 2015, denying a motion by CB and ME for a summary judgment dismissing BSB’s objection to probate. The Order is affirmed.
The case involves the will of FS. The will was signed in 1976, and the decedent passed away in 1980. This proceeding was filed in 1980. BSB was the daughter of the decedent and signed a consent to probate on 10/8/80. The will was admitted to probate 11/13/80.
One of the defendant’s grandchildren moved to vacate the probate because several distributes weren’t named in the probate petition.
The court granted the petition, noting that in the event that jurisdiction isn’t obtained for a necessary party to an action, the decree is considered void to that party.
RP filed an amended petition in 2013 and another in 2014. BSB filed an objection arguing undue influence and lack of capacity. CB and ME who are the grandchildren of the decedent filed a motion for summary judgment as to BSB’s objections. BSB filed an appeal, then died. The court recognizes the executors of her estate to stand in her place for the purposes of this action.
The Surrogate Court correctly decided the original order only vacated the decree over the distributes who didn’t have jurisdiction. BCB never moved to vacate her consent regarding the will. She also never asserted grounds for vacatur existed. She was therefore prevented from objecting to probate because she consented to the will (Matter of Coccia 59 AD3d 716; Matter of Parada 149 AD3d 949).
Given of the delay of 34 years in asserting her objections to probate the will and considering the prejudice from that delay, including incompetence and death of any witnesses who could dispute the assertions of capacity and undue influence-the doctrine of laches applies. This prevents BCB from challenging the probate of the will (Wilds v Heckstall 93 AD3d 661; Matter of Bryer 72 AD3d 352).
The Surrogate Court properly vacated its original decision and granted the grandchildren’s motion for summary judgment regarding the dismissal of BCB’s objections to probate.
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