Sometime in 1936, plaintiff and his wife (the deceased), residents of Kings County, entered into an agreement to execute mutual reciprocal and irrevocable wills which neither of the parties was to alter, cancel or revoke without the written consent of the other. The wills were accordingly executed.
In 1954, the wife executed another will. In her will, she devised and bequeathed all her estate, both real and personal, to plaintiff husband.
On 27 July 1955, the wife died leaving her surviving plaintiff husband. Allegedly, the will of 1954 was made in violation of the 1936 agreement and with intent to avoid the provisions of the 1936 will and in order to deprive plaintiff of his rights thereunder; that the 1954 will was admitted to probate by the Surrogate of the County of Kings on 6 February 1956; that the said will was made by deceased without the knowledge or consent of plaintiff and that the only asset of the estate is a bank account of almost $3,000.
Thus, a New York Probate Lawyer said an action has been brought by plaintiff husband against the executrix of his deceased wife’s estate and the legatees under a will executed by her in 1954, as defendants herein (the defendant, Bank of Brooklyn, being merely a depository).
Plaintiff seeks to have the 1954 will, which was admitted to probate, declared null and void, and demands judgment that defendants be restrained from disposing or removing from the jurisdiction of the court any money or property of the estate, that the provisions of the 1936 will be carried out in all respects and that a trust in favor of plaintiff be declared as to the funds in the bank account.
The moving party urges, as a bar, to the present action that plaintiff could have sought the relief he seeks in the action in the Surrogate’s Court which possesses broad powers in matters relating to decedent estates.
Plaintiff contends that he was obliged to commence the present action on the basis of breach of contract and to impress a testamentary trust on the assets left by the decedent.
According to Nassau County Probate Lawyers, the defendant files a motion for an order directing that judgment be entered dismissing the complaint, pursuant to Rule 107 of the Rules of Civil Practice, on the ground that the court does not have jurisdiction on the subject matter of the action and, on the further ground, that it is an action relating to a decedent’s estate and should be brought in the Surrogate’s Court, Kings County, where a proceeding is presently pending for the administration of the assets of the defendant estate; estate administration or estate litigation.
The rule is well established that the Supreme Court will refuse to entertain jurisdiction of a matter where the Surrogate’s Court has complete power to safeguard the interests of the parties.
Here, plaintiff can adequately protect the rights he is now asserting by resorting to the Surrogate’s Court where a proceeding relating to the deceased’s estate has already been instituted. Long Island Probate Lawyers said if the testatrix bound her estate by a valid antecedent obligation, this court (Surrogate’s Court) is empowered to grant to the claimant full and complete legal and equitable relief.
It has been ruled that while the court has concurrent jurisdiction and although, strictly speaking, another action may not be pending between the same parties for the same cause, there is no sound basis for resorting to this forum when a complete determination of the issue sought to be tendered can be had in the Surrogate’s Court.
The Surrogate’s Court is a specialized court. For a long period of time, efforts have been made to encompass within its fold all matters embracing, or properly relating to, the estates of decedents over which the surrogate has jurisdiction. To this end, legislation has been enacted tending to bring that result about, all in the interest of speedier justice and the unification of jurisdiction. The herein court has concurrent jurisdiction with the surrogate’s, but has wisely yielded its right to jurisdiction to the accomplishment of the end sought.
Henceforth, the motion is denied, under the rule upon which the motion is predicated, as no basis exists for a dismissal under any of the items therein specified as a ground for dismissal. Nonetheless, the court has power under the circumstances to refuse to entertain jurisdiction; thus, the court does refuse and dismisses the complaint.
For free legal consultations on similar situations as the above, get in touch with a Kings County Probate Attorney at Stephen Bilkis & Associates. Our legal experts have had extensive experience and training on the matter, thus, have acquired unique skills that could help you. Talk to a Kings County Will Contest Attorney from our firm so you could better protect your rights.