A petition for probate of the decedent’s will has been filed with the Probate Department of the New York Court. The petitioner is the nominated coexecutor and son of the decedent.
A New York Probate Lawyer said that the petitioner has requested that the court dispense with the service of process upon the grandchildren of the decedent who are persons adversely affected by the exercise of powers of appointment in the decedent’s propounded will.
“The Official Form of Probate Petition (Form No. 7) lists among the persons to be cited ‘all persons adversely affected by the purported exercise by such will of any power of appointment.’ Section 1403 does not make such persons essential parties to the probate. This omission was not an oversight on the part of the Legislature or the Commission on Estates. The inclusion of such persons was considered and rejected because it might happen that the parties would not be aware of any power of appointment until after the probate proceeding terminated and then the omission of an essential party to the proceeding could constitute an infirmity in the decree. The inclusion of the parties in the Official Form was intended to remind attorneys of the prudence of citing them.
In the ordinary situation, counsel should cite persons who would take in default of the exercise of a power of appointment by the testator; otherwise such persons would not be bound by the probate decree and could later litigate the appointment. A New York Will Lawyer said on the other hand, if the probate court had acquired jurisdiction over them, the Full Faith and Credit Clause would prevent their again litigating the validity of the donee’s will.
The court is in full agreement with the statements contained in the Practice Commentaries. It is a fundamental principal of equity concerning parties that all persons interested in the subject matter and the relief granted shall be made parties. Moreover, no substantial prejudice to the proponent is discernible so as not to require him to cite the grandchildren of the decedent.
Accordingly, the persons adversely affected by the power of appointment must be cited in this probate proceeding.
In another probate action, a petition for probate of the decedent’s will has been filed with the probate department of this court. A Long Island Probate Lawyer said that the petitioners, who are the executors named in the will, have requested that the court dispense with the service of process upon the distributees of the decedent’s husband who are persons adversely affected by the exercise of a power of appointment in the decedent’s propounded will.
The court discussed the problem presented in the recent decision of a case law and concluded in that case that the persons adversely affected by the power of appointment must be cited in that probate proceeding. However, the facts of the present case differ from those in the case law. In the present case, the decedent exercised a power of appointment given to her under the will of her husband. In default of the exercise of the power, the appointive fund is to be held in trust for the life of the decedent’s grandniece by marriage and in the remainder thereof is payable to the issue of such grandniece, and in default of issue the remainder is payable to the distributees of the decedent’s husband, who are his first cousins. The decedent’s grandniece by marriage has been made a party to the probate proceeding. It is alleged that the said grandniece, an adult who has an income interest in the appointive fund, can virtually represent those takers in default who are interested in the remainder. At the present time, since the said grandniece has no issue, the takers in default interested in the remainder are the cousins of the decedent’s husband. This court agrees that virtual representation applies in this case; and accordingly, it will not be necessary to cite the distributees of the decedent’s husband in this probate proceeding.
It should be noted that SCPA 315, although dealing with the question of virtual representation in probate proceedings by those interested in the income of an appointive fund as representatives of those interested in the remainder of such fund, does not resolve the question presented herein since the statute specifically provides that it is only applicable if the beneficiaries of the fund have a common interest in proving the will.
A Brooklyn Probate Lawyer said the court can conceive of no instance in which such a situation would arise. In the case of persons adversely affected by the exercise of a power of appointment, such persons would never be interested in proving the will since they are adversely affected by a will that exercises the power. Indeed, this court can conceive of no instance in which the provisions of SCPA 315 would ever apply and recommends that the Legislature consider revising the statute so that it be made applicable even if the beneficiaries are interested in disproving the will. Nevertheless, it is this court’s opinion that the person interested in income of the appointive fund can adequately represent the interest of the remaindermen in this probate proceeding since there is no conflict in such a proceeding between the interest of income and remainder.
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