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Petitioner Alleges Lack of Testamentary Capacity


A New York Probate Lawyer said the records reveal that in this contested probate proceeding, three motions are before the court. Decedent died and is survived by several brothers and sisters and by an alleged spouse, the objector herein, to whom she was married on August 8, 1953. The propounded paper, makes no provision for the objector and recites, as the reason therefor, the decedent’s belief that the objector was not truly her husband since he had previously been married. The decedent further expressed her belief that objector had abandoned his wife in Italy and that his first marriage had never been legally terminated.

A New York Estate Lawyer said that the issue has been joined by the interposition of an answer alleging lack of testamentary capacity, fraud, duress and undue influence and claiming an interest in the estate as the spouse of the deceased.

A Queens Probate Attorney said that the proponent now moves to dismiss the objections on the ground that objector has no status. The third motion before the court, submitted by the proponent simultaneously with his motion to dismiss the objections, seeks to examine the objector on the facts of the alleged prior marriage, the preliminary issue herein. The objector opposes this motion on the ground that ‘there is no authority for the taking of depositions for use upon a motion,’ citing Matter of Erlanger’s Will and Standard Foods Products Corp. v. Vinas Unidas.

Long Island Probate Lawyers in the Erlanger case, the Court was confronted with a situation almost identical to the one now before this court. The surrogate had ordered a hearing on the issue of status of an alleged spouse and had granted an examination before trial on said issue. The motion to dismiss objections awaited the outcome of the hearing. In reversing the order granting an examination before trial, the court held that the preliminary hearing was not a special proceeding in which such examination could be had under section 308 of the Civil Practice Act. Summarizing the view of the court, Justice Martin stated: ‘The matter before us being a motion similar to many other motions that are made from time to time in the course of a litigation, it would seem unwise to extend the practice to meet such conditions.’

It would appear, however, that the Appellate Division for the Fourth Department has expressly rejected the First Department view. While agreeing that a party might not be examined, on a motion, under the provisions of section 307, C.P.A., which provides for such examination of witnesses, that court held: ‘But for taking the deposition of a party, even for use on a motion, sufficient authority is found in section 288, Civil Practice Act. Under section 288, no excuse is needed for taking the deposition of a party to an action other than that the deposition is material and necessary to the prosecution or defense of the action. An action is more than a trial on the merits. Preliminary motions are a part of the action.’ This interpretation has been adopted in the Third Department. Though, as yet, the Appellate Division in the Second Department has not expressed its view on this problem, the Supreme Court in Kings County has reluctantly followed the rule of the First Department in Standard Foods Products Corp. v. Vinas Unidas.

In 1950, the Judicial Council recommended an amendment of the Civil Practice Act to resolve the difference between the departments. Concluding the study which resulted in this recommendation, the Council stated: ‘Finally, because it is desirable for motions to be determined after both parties have had a full opportunity to sustain their respective positions, the recommended amendments adopt the liberal practice of the Fourth Department.’ While no legislation has resulted from this recommendation, this court agrees with the views of the Judicial Council and with the results reached in the Third and Fourth Departments.

Some light is shed on the view of our Second Department in Matter of Irwin’s Will. In that case probate had been opened and leave given to the objectors to intervene. The Surrogate, having first dismissed a motion by the proponent to strike out the appearances of the objectors, ordered a preliminary hearing on the status of said objectors and granted a motion by the contestants for the issuance of a commission to take testimony on the issue of status. The Appellate Division, in affirming with modifications, distinguished the Erlanger and Norton cases, on the ground that, in those cases, pending motions were before the court, whereas, in the case before them, all motions had been disposed of. Since, however, the Appellate Division for this Department has held that an examination before trial may be had on the issue of status, generally determined by the surrogates in preliminary hearings, this court cannot rule that a party who moves to dismiss objections to probate thereby precludes his right to such examination. Motion granted. In the absence of agreement, the time of the examination, which will be had before the official stenographer, will be fixed in the order hereon which should be settled on notice.

The law provides that, “Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises.” Another relevant provision provides that “any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof except that one whose only financial interest would be in the commissions to which he would have been entitled if his appointment as fiduciary were not revoked by a later instrument shall not be entitled to file objections to the probate of such instrument unless authorized by the court for good cause shown. Furthermore, renunciation or exclusion of persons having prior or equal right Every eligible person having a right to letters of administration with the will annexed prior or equal to that of the petitioner including an infant, incompetent or conservatee whose guardian, committee or conservator would be entitled to letters, and who has not renounced, must be served.”

Probate Proceedings, estate administration, will contest, and such others relating to the estate of the decedent are common cases filed before the proper courts in different jurisdictions. Many of us sometimes do not know what rights are entitled to us, hence, we never enforced whatever is rightfully due to us. If you are faced with such situations, or you know of someone dealing with such, ensure that you have the services of knowledgeable and skilled legal team who will stand beside you in every phase of your action. Probate Proceedings can be complicated sometimes because of the many different claims of interested persons whose rights are affected. Stephen Bilkis & Associates, with offices located throughout New York, can aid you with the legal assistance you need through its Kings County Estate Litigation Lawyers or its New York Estate Attorneys. Always consult with legal experts regarding matters of legal concern.

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