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Petitioners Seek to Revoke Probate Petition


The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.
Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the 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. The affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution.

However, a New York Probate Lawyer said the second subscribing witness cannot be located. Thus, the petitioners now move to withdraw their probate petition and ask that the Court issue letters of administration to them (for the purposes of estate administration in an estate litigation). They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness; and that the distributees have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the subject Last Will & Testament.

The Issues of the Case:

Brooklyn Probate Lawyers said the main question that must be resolved by the court is whether or not the petitioners may withdraw their probate petition and move for the issuance of letters of administration instead; and, if not, the next issue that must be resolved is whether or not the facts stated and the evidence presented are enough to continue with the probate proceedings.

The Ruling of the Court:

Under the law, Long Island Probate Lawyers said where there is an apparently valid testamentary instrument on file, the Court has the obligation to try to respect the testamentary wishes expressed therein, if this can be done. The law 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 in this regard 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. It is normally the duty of the nominated executor to take diligent and active steps to procure its probate and to protect the will from attack from any source. Where 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. Thus, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Nor will probate 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, especially where the results would be similar to intestacy.

Moreover, 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; and 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, none of the aforesaid exceptions to excuse probate have been presented. It must be noted that 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. While the failure to locate the original creates a presumption of revocation by the decedent, 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.

Moreover, the drafter is an attorney who supervised the execution of the instrument and is a subscribing witness, giving rise to a presumption of due execution. The inability to locate a subscribing witness does not bar probate, since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success. Furthermore, all of the distributees agree that the decedent’s testamentary wishes should be adhered to. For these reasons, 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, in that case, the Court authorizes the Public Administrator of Kings County to pursue probate.

In sum, 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; and, upon failure to do so, the Public Administrator is directed to file a petition to probate the subject instrument in their place.

Death of a loved one is hard enough, but getting involved in court litigations is much harder. In this case, it is wise that the legal representative you choose is competent enough to represent your interests. A part of your burden shifts to the legal counsel chosen and his acts, before courts of law, will be your acts as well. Thus, it is vital that such legal counsel fight for your cause in every possible manner.
For the assistance of well experienced lawyers in the field of estate administration or probate proceedings like the above, get in touch with Stephen Bilkis & Associates. You can visit us at any of our offices located around the metropolitan or you can call us at our numbers. Our consultations are free of charge and you may discuss you legal issues or dilemmas with our highly skilled and competent Suffolk County Probate Lawyers, Suffolk County Estate Litigation Lawyers, Suffolk County Estate Administration Lawyers, among others. With us, you are assured of the best legal advice and the best legal representation. Nothing beats the well prepared.

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