A New York Probate Lawyer said this is a proceeding where petitioners move to withdraw their petition to probate a copy of a testamentary instrument as a lost will pursuant to SCPA 1407and have letters of administration issue instead.
The pertinent facts are as follows:
A New York Estate Lawyer said on 26 October 2000, J, the decedent died. He left a will apparently executed on 23 March 1995. Under the instrument, the decedent left her estate to her two sisters, JB and AB, or the survivor. She named JB as executor and AB as successor. JB predeceased the decedent without issue. As a result, the entire estate passed to AB.
In 2005, AB petitioned for the appointment of a guardian of her property. The court, finding that AB had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, RL, a niece, and GMR, Esq., as guardians of AB’s property.
Sometime in May of 2007, a judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will pursuant to SCPA 1407. In support of the petition, the affidavit of RL was submitted which states that she located the copy among J’s important papers after her death. While J must have had the original will, J’s house had been sold and the purchaser threw away all of J’s papers. The affirmation of GMR states that after J’s death, her home was taken over by a former handyman of AB, who threw away all of J’s papers.
The propounded instrument was prepared by an attorney who supervised its execution, was a subscribing witness and has filed an affirmation of due execution.
The propounded instrument’s second subscribing witness cannot be located.
A Nassau County Probate Lawyer said that the petitioners moved to withdraw their probate petition and ask that the Court issue letters of administration to them on the ground that they are unable to probate the instrument because of the unavailability of the second subscribing witness. The distributees have executed agreements waiving their intestate rights “so as to mirror the testamentary plan set forth in her Last Will & Testament dated 23 March 1995.”
The decision of the court on the issue:
A Staten Island Probate Lawyer said if there is an apparently valid testamentary instrument on file, the Court is under obligation, as much as possible, to try to respect the testamentary wishes expressed therein. As held in Matter of Moyer, 97 Misc 512, 516 (Sur Ct, Monroe County 1916), the Surrogate stated: “If I could consider first and only the wishes of all of the parties directly interested herein, I would be inclined to accede to their wishes and deny probate of this instrument against which they have opposition and admit the prior instrument. The law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property.”
The Court’s obligation is a matter of public policy. This is reflected in the authority reposed in the Surrogate’s Court to ensure the validity of instruments offered for probate and case law requiring the Surrogate to pass on the validity of testamentary instruments offered for probate. This duty is not relieved by the parties’ agreement to arbitrate the dispute or consent to probate.
Ordinarily, it is the duty of the nominated executor to “take diligent and active steps to procure its probate and to protect the will from an attack from any source.” In case the nominated fiduciaries have died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument. However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Hence, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Also, probate will not be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Even an otherwise valid instrument need not be offered for probate where its proof is doubtful or would entail undue time and expense, particularly where the results would be similar to intestacy.
Even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration where there has been unreasonable delay in probate, where all the legatees are adults and either consent, default or appear but do not file objections. “Where all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission.”
Here, however, none of the exceptions to excuse probate are presented. The sole beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties.
It is true that the failure to locate the original creates a presumption of revocation by the decedent. However, this presumption may be rebutted where, as here, there is a natural explanation for the failure to locate the original and the copy is found among the decedent’s important papers.
It must be noted that the drafter of the instrument, an attorney who supervised the execution of the instrument and is a subscribing witness, submitted his affirmation giving rise to a presumption of due execution. The inability to locate the second subscribing witness will not bar probate since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success.
As a final point, all of the distributees agree that the decedent’s testamentary wishes should be adhered to. Under these circumstances, the Court cannot agree to the abandonment of the probate proceeding. Nonetheless, the Court cannot force the petitioners to pursue probate if they chose not to do so. Thus, if the petitioners are unwilling to proceed with the probate proceeding, the Court authorizes the Public Administrator of Kings County to do so.
Accordingly, the petitioners’ motion to withdraw the probate petition is denied. The petitioners are directed to complete their papers in support of the petition, including an affidavit showing diligent search for the second subscribing witness by 3 September 2009. If they fail to do so, the Public Administrator shall be directed to file a petition to probate the propounded instrument in their place.
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