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Motion for Standing as a Person Adversely Affected by Probating a Will- In re Prob. Proceeding for the Estate of Wilke, 2019 NY Slip Op 51220(U) (N.Y. Surr. Ct. 2019)


In this case the Surrogate’s Court, Albany County, considered whether an individual had standing to object to probating a will based on having been named as a beneficiary in a prior will pursuant to pursuant to Surr. Ct. Proc. Act § 1410.

Before a person can become a party to a proceeding to probate a will the person must have legal standing. “Standing” means that the person has an interest in the outcome of the probate proceeding. Typically, those who have standing are limited to anyone who is mentioned in the will as a beneficiary or those who are intestate heirs of the decedent.

In this case the petitioner, R. Smith, who is not a beneficiary of the will submitted for probate and who is not an intestate heir of the decedent, is a beneficiary of a prior will.  Smith intends to the object to the probate of the will already submitted, but first the Surrogate’s Court must consider Smith’s motion for standing as a person adversely affected by the admission into probate of the will.

On May 20, 2016 the decedent executed a will and filed it with the court for safekeeping in September of 2017, pursuant to Surr. Ct. Proc. Act § 2507.  In the 2016 will the decedent left his estate to Smith and named him as the executor.  In the will, the decedent referred to Smith as his “caretaker, friend and God son.”  In January 2019 the decedent retrieved the will from the Surrogate’s Court.

On February 29, 2019, the decedent suffered serious burns from hot oil and in March of 2019 died of complications related to his injuries.  He was survived by 3 adult children. About a week after his death, a will dated January 7, 2019 was submitted to the court for probate by D. Brenn.  In that will the decedent left his estate to J. Corrodore and named Corrodore as executor. D. Brenn was named as the contingent beneficiary and alternate executor. Corrodore was determined to be ineligible to serve as executor as he had been convicted of a felony.  Brenn commenced the proceeding to probate the 2019 will and obtain letters testamentary. Learning of the probate proceeding, Smith appeared at the hearing with a copy of the 2016 will and filed this motion to establish his standing to participate in the probate proceeding. Brenn opposed Smith’s motion.

Smith based his contention that he has standing on the provisions of Surr. Ct. Proc. Act § 1410 which provides that any person whose interest in property or in the estate will be adversely affected by the admission of the will to probate may file objections to the probate of the will.  Courts have held that a person’s interest in an estate would be “adversely affected” if he was named in a prior will and his interest under the prior will is greater than under the propounded will.

Smith argued that the admission of the 2019 will to probate would adversely affect him, as he is the sole beneficiary of the 2016 will and not a beneficiary in the 2019 will. Smith also argues that the 2019 will is invalid because it was not properly executed, that the decedent lacked testamentary capacity, and that the decedent was under duress when he executed it. He also presented evidence of his relationship with the decedent and proof that he was the beneficiary of multiple insurance policies of the decedent.

In opposition to Smith’s motion, Brenn asserted that the 2019 will meets the statutory requirements of EPTL § 3-2.1, and that it contains language revoking any and all prior wills. In other words, Brenn asseted that when the decedent executed the 2019 will, he intentionally revoked the 2016 will. Furthermore, she argued that when the decedent removed the 2016 from the Surrogate’s Court he destroyed it.

The court acknowledged that by presenting the 2016 will that listed Smith as a beneficiary, Smith would be adversely affected by the admission of the 2019 will to probate. The court also acknowledged that in order for the 2016 will to be probated and the 2019 declared invalid, Smith would have to produce evidence to support his claims.  However, Smith did meet his burden at this point in the probate proceeding of showing that he has standing to participate in the proceeding.  Thus, his motion for standing to appear in this proceeding as a person adversely affected by the admission of a certain will to probate and permitting him to file objections to probate was granted.

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