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Court Rules on Complex Wills Case


A son of a deceased man who filed an objection in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the proceeding, has now noticed for settlement a decree dismissing the validation petition. He has also moved to have his application for letters of administration restored to the calendar. The deceased man’s daughter, the proponent in the validation petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her petition.

When the father died, he was survived by three children. A New York Probate Lawyer said that the validation petition was filed provides for an equal distribution of the estate between the two children other than the son who made the objection. It appears from allegations made in the pending applications that the other son, the beneficiary of 50% of the properties under the will, died on April 2, 2006 and that he was not married and did not have any children.

The son who made the objection made several applications in the validation proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on the issue directed the production of certain documents by the proponent. Queens Probate Lawyers said that after the deadline passed without production of the additional documents, the son moved to dismiss the validation 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. 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 son’s application to dismiss the validation 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 validation petition, the court rendered a decision, 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 proceeding.

The proponent’s excuse for failing to respond to the disclosure demand or to oppose the motion to dismiss the validation 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 proceeding. Moreover, New York Probate Lawyers said she now submits a sworn statement that the documents requested by the son 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. This is especially so where, more than four and one-half years have elapsed since the proceeding was commenced and the proponent states that she is now ready to move forward with the proceeding but that the son cannot have the requested documents because they have been discarded due to urination, roach infestation. Thus, the son 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 representation in the will contest, which as a result of the death of one brother now appears to involve only the proponent and the son, renders it unlikely that the proponent would be able to expeditiously conclude the validation proceeding should the court excuse her default in opposing the application to dismiss the proceeding and, upon re-argument, deny that application. Given the history of the 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 the validation proceeding has been pending does not justify reversing the prior dismissal of that the validation proceeding based upon the proponent’s failure to diligently prosecute it and to produce documents pursuant to the court’s directions.

Manhattan Probate Lawyers said that the decree that was noticed for settlement by the son provides that the propounded instrument is a forgery. Although the son made that allegation in his motion, the court did not grant the application on that basis. Consequently, in accordance with the court’s decision, the decree entered simultaneously with this decision provides that the validation 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. The application to restore the administration proceeding to the calendar of the court is granted.

Family members ought to watch over each other. When sickness struck a member of the family, it becomes the main priority but it does not justify neglecting our legal obligations. Legal disputes over will administration can be addressed by Stephen Bilkis and Associates.

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