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Non-Marital Child Does Not Have Standing to Object to Probate- In re Prob. Proceeding of Mengoni, 2020 NY Slip Op 30728(U) (N.Y. Surr. Ct. 2020)


In a contested probate case, the court considered whether an objectant had standing to participate in the probate proceeding based on a claim of being the child of the decedent.

Th decedent died in February of 2018, leaving a substantial estate.  A petition to probate a purported will of decedent dated January 11, 2017 was filed by the decedent’s attorney and the drafter of the will. The will named him as the executor. The petitioner, A. Mengoni, among others, was named as an interested party as she was identified as an alleged daughter of decedent. The instant litigation was commenced when A. Mengoni filed objections to the will. The proponent of the will, decedent’s attorney and nominated executor, filed a motion to strike A. Mengoni ‘s appearance and dismiss her objections.

New York law requires that in order to participate in a probate proceeding, you must have standing to do so. Generally, only those who are named in a will as beneficiaries and the intestate heirs of a decedent have standing. Also, anyone who was a beneficiary of a prior will and would be adversely affected if the propounded will is probated would also have standing according to Surr. Ct. Proc. Act. Section 1410.  In this case, A. Mengoni is basing her standing on being the child of the decedent, making her an intestate heir.

The proponent based his motion to dismiss A. Mengoni’s appearance and objection to probate on his contention that she has no standing to participate in the probate proceeding because she is not in fact the decedent’s child. Accordingly, she is not an interested party. The proponent contends that it was established decades ago that although A. Mengoni’s mother was married to the decedent at the time she was born, A. Mengoni is not the decedent’s child. When the decedent and A. Mengoni’s mother divorced, one of the central issues was whether A. Mengoni was the decedent’s child. While initially the record of the divorce indicated that the court awarded A. Mengoni’s mother child support as A. Mengoni was the one child of the marriage, later the court ordered that A. Mengoni and her mother to submit to blood tests pursuant to CPLR 3121(a) to determine the paternity of Ashley. The blood tests confirmed that the decedent was excluded as being the father of A. Mengoni and A. Mengoni’s mother acknowledged on the record that the decedent was not A. Mengoni’s father. The decedent had no contact with A. Mengoni following his divorce from her mother.

While the court declined to apply the doctrine of collateral estoppel to A. Mengoni based on the divorce proceeding between her mother and the decedent as A. Mengoni was not a party to that proceeding, the court noted that it would be nearly impossible for A. Mengoni to overcome the evidence that she is not in fact the daughter of the decedent. In fact, A. Mengoni failed to offer any legal theory that supports her claim that she is the decedent’s daughter for purposes of entitlement to inherit from his estate.  As a result, the court concluded that A. Mengoni lacked standing to object to the probate of the propounded instrument.

Note that the law does provide a scenario under which a person in a position similar to A. Mengoni would be able to establish a lawful claim to a decedent’s estate. Section 4-1.2 of the EPTL provides that paternity of non-marital children may be established with clear and convincing evidence that the father “open and notoriously” acknowledge the child as his own. A. Mengoni was not able to do this because she had no contact with the decedent after he and her mother divorced.




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