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Court Discusses Powers of Executor Regarding Prior Will


A New York Probate Lawyer said that, the proponent of the will of the decedent seeks a protective order with respect to a notice to examine under SCPA 1404. The decedent died on July 9, 1995, survived by her daughter, as sole distributee. She was also survived by her granddaughter,. Under the propounded will, dated October 3, 1994, the decedent directed that her entire estate, valued at approximately $250,000, be pored over into a living trust created on the same date. Pursuant to the terms of such trust (which was in effect at her death), the trust property, after payment of $30,000 to a named beneficiary, is to be distributed 40 per cent to her daughter, and 60 per cent to her granddaughter.

A New York Will Lawyer said that, the will was offered for probate by the granddaughter, the named executrix, who is also the trustee of the living trust. It is noted that in an earlier will, dated July 30, 1984, the decedent had left one half of her estate to her husband (the named executor) and the other half equally to her daughter and granddaughter. On March 19, 1991, after her husband’s death, the decedent executed a codicil in which she divided her estate administration equally between her daughter and granddaughter and named the attorney-draftsman as executor.

A Brooklyn Probate Lawyers said that, the attorney, duly made a party to the probate proceeding as executor named in a prior instrument filed with the court (SCPA 1403[1][d], served a notice to examine the draftsman, the attesting witnesses and the proponent of the propounded will. The proponent, however, requests a protective order. At issue is whether and to what extent respondent is entitled to conduct examinations under SCPA 1404.

Bronx Probate Lawyers said the issue in this case is whether an executor named in a prior will has an unconditional right to conduct such examinations with respect to the propounded will under which his appointment was revoked.

Subdivision 4 of SCPA 1404, as amended provides, in relevant part, that: Any party to the proceeding, before or after filing objections to the probate of the will, may examine any or all of the attesting witnesses, the person who prepared the will as to all relevant matters which may be the basis of objections to the probate of the propounded instrument.

Clearly, not every person, who is a necessary party in the probate proceeding pursuant to SCPA 1403(1), is entitled to such examination but only a potential objectant to the probate of the propounded will.

As a general rule, the right of potential objectants, such as adversely affected distributees or legatees, to examine under SCPA 1404, is unconditional, without any preliminary showing of the need for the examination.

However, where, as here, the potential objectant is a fiduciary in a prior will, whose appointment was changed in the propounded instrument, SCPA 1410 as amended in 1971, limits such fiduciary’s right to contest the instrument revoking his appointment. The replaced fiduciary was denied the right to file objections without court authorization upon good cause shown because the Legislature wanted to discourage unwarranted harassment and unnecessary expense, as well as unfair interference in amicable settlements among testator’s distributees and legatees. Complying with this purpose, various courts have held that, where lost commissions appears to be the sole financial interest in the estate adversely affecting a fiduciary named in a prior will, such fiduciary is not entitled to contest the propounded will. The court, accordingly, before authorizing the displaced fiduciary to file objections must be satisfied that the loss of commissions has no bearing on the will contest and that the filing of objections is prompted solely by his or her obligation to see that the testator’s wishes are not frustrated by the propounded instrument.

But SCPA 1404 examinations raise a different question, namely, whether the good cause requirement, which is a prerequisite for authorization to file objections, is also applicable to such SCPA 1404 discovery.

Some courts have permitted SCPA 1404 examinations by a fiduciary named in a prior will only where other objectants had requested such examinations, while other courts have refused to allow them where there were neutral parties (e.g., the Attorney-General) who could, but did not, pursue such opportunity.

There are, however, no disinterested parties or other objectants here. Nonetheless, in such a case, the named executor who is the draftsman of an earlier will may have, because of his special relationship with the decedent, unique knowledge of facts to be brought before the court which has the ultimate responsibility to see that testator’s wishes are honored. But even in the absence of a neutral party there is no basis for allowing the replaced fiduciary to hold SCPA 1404 examinations, without good cause shown, where the natural objects of testator’s bounty and all parties interested under the propounded will consent to probate. To hold otherwise would simply amount to a license to fish for some cause in contravention of the clear legislative intent to discourage such former nominees from creating litigation for the sole purpose of obtaining a settlement. This applies particularly where the formerly named executor was the attorney draftsman. The court concludes that the legislative intent expressed in the 1971 amendment of SCPA 1410 must be applied in construing SCPA 1404(4), insofar as the two statutes interrelate.

In the instant case, respondent has not shown sufficient cause to be entitled to SCPA 1404 examinations. His potential contest of the propounded will would serve no purpose other than recouping statutory commissions. The propounded will is consistent with the prior instruments as to estate planning and the identity of the beneficiaries, who are the natural objects of testatrix’ bounty. Testatrix’ daughter, though adversely affected, has not contested her own daughter’s preferential treatment. Finally, it is noted that the attorney draftsman was nominated as executor in only one will, the penultimate instrument executed after the death of decedent’s husband, the named fiduciary in her prior will. The mere fact that the decedent withdrew the nomination of her attorney as executor is not in itself suspicious, where the new nominee is not a stranger or another attorney but her granddaughter.

Accordingly, the court held that the motion for a protective order denying the right to SCPA 1404 examinations is granted and the matter shall proceed as uncontested.

As a general rule, the right of potential objectants, such as adversely affected distributees or legatees, to examine under SCPA 1404, is unconditional, without any preliminary showing of the need for the examination. If there has been a violation of this rule, seek the assistance of a New York Estate Litigation Attorney and/or New York Will Contest Attorney at Stephen Bilkis and Associates.

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