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Court Looks at Motion to Vacate


A New York Probate Laywer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent’s predeceased brother, HK; and, DK, BK, and KK (the children of decedent’s predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent’s home.

A New York Estate Lawyer said that on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the “name and relationship” of all persons with a “legacy, devise or other interest, or nature of fiduciary status” is asked. In G’s original probate petition, she stated that she was the decedent’s live-in companion and the beneficiary of the decedent’s entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent’s estate is G’s sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent’s entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent’s home, as G’s address. In response to question 8(a), which asks whether “any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent,” G indicated that she, “petitioner,” had a confidential relationship with the decedent.

On 25 September 2007, preliminary letters issued to G with the court directing the submission of a family tree. On 8 November 2007, G submitted an affidavit stating “I am not aware of any disinterested person capable of giving a Family Tree Affidavit xxx” and advised the court that the decedent spoke occasionally with someone named NK and was visited by someone named FR but that she did not know whether the decedent was related to these individuals.

On 25 February 2008, counsel for various members of the decedent’s family advised the court by letter that the decedent had executed a will in 2001 in which members of the decedent’s family and the family members of her late husband were named as the beneficiaries and co-executors. A copy of the executed will was furnished to the court but counsel advised that the original signed document had not been located, that the family members intended to prove that the proffered 2006 will was procured by G by means of fraud and undue influence, that the decedent was not of sound mind or memory and was not capable of making a will in 2006, and that the will was not properly executed. The letter also accused G of committing perjury on the basis of the sworn statements made by G in her petition that the decedent left no distributes even though she had actual knowledge of the distributees’ existence and other extended family members. Counsel for the decedent’s family demanded that the petition for probate be amended to reflect the decedent’s distributees. A copy of the said letter was sent to counsel for G

G filed a consent to change attorney dated 25 February 2008. On 10 April 2008, G filed another consent to change attorney, dated 28 March 2008. On 18 April 2008, with the representation of the third attorney, G filed an amended petition. Under the amended petition, G is not listed as an interested person under paragraph 6(a), despite her interests under the will. This amended filing reflects that the decedent left an alleged nephew, NK, and two alleged nieces, GKH and EKS, all of whom are the children of the decedent’s predeceased brother, HK. In reply to question 8(a) as to whether any beneficiary under the will had a confidential relationship with decedent, in this amended petition for probate, G checked “None.”

A Westchester County Probate Lawyer said that on 13 June 2008, counsel for the family members, representing the three above-named alleged distributees and DK, BK and KK, children of the decedent’s predeceased nephew, RK, filed a notice of appearance and family tree affidavits signed by EKS, the decedent’s niece, and JA, a niece of the decedent’s husband. According to the affidavits and the family tree, the decedent had three brothers who predeceased her: AK (who had no children), HK (who predeceased but was survived by four children, one of whom died leaving no children) and JK (whose only son, RK, died in 1991, leaving three children).

A Suffolk County Probate Laywer said that by letter dated 28 July 2008, G’s attorney asked counsel for the family to “consent to the extension of Preliminary Letters, recognizing the fact that the Preliminary Executor is not permitted to distribute any moneys to estate beneficiaries until such time as full Letters are issued.” G’s attorney further indicated that he was trying to determine whether the family tree and the affidavit of heirship provided to the court by the decedent’s family would be sufficient to establish heirship, and opined that a genealogist might be required. The family’s attorney agreed to consent to the extension of preliminary letters.

On 18 September 2008, another amended petition was filed and in this last version, G acknowledged the existence of the six alleged distributees. The court did not require that a supplemental citation be served on the newly acknowledged distributees; a notice of appearance on their behalf had previously been filed. G’s attorney did not provide counsel for the distributees with a copy of the second amended petition or advise him or his clients that it had been filed.

According to G’s attorney, in his affirmation in opposition to the instant motion, sometime in September 2008, he telephoned an associate of opposing counsel with the intention of inquiring whether objections were going to be filed but despite the associate’s assurance that she would call back the next day, the call was not returned; on 24 October 2008, he had a decree granting probate with notice of settlement served personally on the office of counsel for the distributes; and, no objections were filed within five days of the date of personal service.

On 31 October 2008, based on the second amended petition, the 2006 will proffered by G was admitted to probate and the issuance of full letters on 3 November 2008 followed.

The motion now before the court, also dated 31 October 2008, followed.

According to the movant’s counsel (family’s counsel), in his affirmation in support of the motion to vacate the decree, the motion should be granted as the objectants have previously indicated that they seek to avail themselves of the right to file objections to the probate of the will presented by the petitioner; proceedings pursuant to SCPA §1404 should take place prior to the court making any determination on the objections to be filed by objectants; this has not occurred as the objectants were unaware of the filing of the second amended complaint by the petitioner as the same was never served on their counsel; and, the objectant’s counsel erroneously believed that the notice of settlement served by the petitioner was for the re-issuance of temporary letters of Probate.

According to G’s attorney (opposing counsel), in opposition, the motion must be denied as it does not meet the standard established in 2008 by the Court of Appeals for vacatur of a probate decree, particularly, “a probate decree should be vacated only if petitioner can demonstrate facts constituting a substantial basis for challenging the proffered will and a reasonable probability of success on the merits of its undue influence claim;” and, the movants did not meet the requirements of CPLR 5015 for relief from a judgment or order, namely: excusable default; newly discovered evidence; fraud, misrepresentation or other misconduct; lack of jurisdiction or reversal; or, modification or vacatur of a prior judgment on which the order or judgment is based.

According to the movant’s counsel, of the five categories of relief, the circumstances surrounding his failure to timely file objections to probate give rise to an excusable default; he pointed out that G’s attorney requested that he consent to an extension of temporary letters but then served him with a notice of settlement for full letters, without any prior notification of this change in strategy and neglected to send him a copy or give notice of the second amended petition filed with the court on 18 September 2008; he was away from the office when the notice of settlement was received and he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters, and therefore did not object; and, he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.

Here, the fact remains that the movants’ counsel took no court action on behalf of his clients at any point prior to making the motion for vacatur; and, at no time did counsel file objections or seek discovery and merely stated an intent to do so. While movants’ counsel is correct in saying that a copy of the second amended petition should have been sent to him, opposing counsel is equally correct in pointing out that the second amended petition contained no changes or information previously unknown to counsel, and movants’ counsel had no reason to expect that it would. The opposing counsel’s failure to send a copy of the second amended petition to the movants’ counsel is not a jurisdictional defect. Even if the court were to find that the above facts are sufficient to establish an excusable default, the movant’s counsel failed to establish the second prong required for vacatur, namely, “a reasonable probability of success on the merits.” The court is not taking the position that there are no facts to vacate the decree of probate, but rather, that the facts to support vacatur have not been properly presented to the court.

However, while the movants’ attorney failed to meet the standard for vacatur, the court is troubled by many of the facts on record.

First, G’s initial petition disclaimed any knowledge that the decedent left surviving distributes. G’s alleged lack of knowledge is disputed by multiple documents. It appears that G submitted false information to the court and only when challenged did she change her sworn statements.

Second, in paragraph 6(a) of G’s initial petition for probate, she accurately reflected her relationship with decedent as that of a “live-in companion.” G then deleted this information from her amended petition and second amended petition, the latter of which was the basis for the admission of the will to probate.

Third, in response to item 8(a) of the petition, G stated on her original petition that she was in a confidential relationship with the decedent. However, in her amended petition and second amended petition, G checked the box indicating that no confidential relationship existed. A legatee who is the decedent’s sole live-in caregiver and who is otherwise unrelated to the decedent is often found to have been in a confidential relationship with the decedent. Had this question been answered accurately by G, the court might have scheduled a hearing prior to the issuance of full letters.

Fourth, aside from G’s own conduct, it must be noted that the 2006 will differs radically from the copy of the decedent’s prior will submitted by the attorney for the distributees, in which the decedent bequeathed her estate to the members of her family and the family of her husband. There is no clear indication that anything occurred subsequent to 2001 that would have led the decedent to disinherit her entire family. What’s more, the 2001 will was prepared and its execution was supervised by an attorney whose office was located in Nassau County, where the decedent resided, whereas, the 2006 will was prepared and was supervised by an attorney in Brooklyn, New York. It is not shown how the decedent came to use this attorney and the affidavit of the attesting witnesses did not indicate the location where the subject instrument was executed.

Fifth, the 2006 will provides that in the event G predeceases the decedent, all of the decedent’s property will pass to G’s sister in the Ukraine. In Matter of Martinez (NYLJ, 19 September 2007 [Sur Ct, New York County]), the court addressed a will which left everything to a person who had been in a confidential relationship with the decedent. The court held that “when the person alleged to have benefitted by the exercise of undue influence is in a confidential of (sic) fiduciary relationship with testator, an inference arises that her influence was undue xxx requiring the beneficiary to explain the circumstances of the bequest xxx.”

Standing alone, any one of the said facts might be insufficient to prove undue influence or fraud, particularly in view of the fact that no original copy of the 2001 will has been proffered.

Nonetheless, the combination of these factors casts doubt on the validity of the probated will.

It is the court’s chief concern to admit only valid wills to probate and the court must be satisfied as to the genuineness of the will before admitting it to probate. Even after a will has been admitted to probate, the court may still examine “issues concerning its validity and effect.”

Here, the court’s admission of the 2006 will to probate was based, in part, on substantive omissions and misstatements by the proponent and upon review the court is not satisfied as to the genuineness of decedent’s 2006 will.

Accordingly, the court vacates its decree dated 31 October 2008 which admitted to probate the decedent’s will dated 8 November 2006; vacates letters testamentary issued to G; will reissue preliminary letters testamentary to G; and stays the executor from making distributions or expending any funds she may have already distributed to herself.

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