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Court Decides Case Regarding Submission of Final Decree


A New York Probate Lawyer this contested probate proceeding the attorneys for the executor, on submission of a final decree for probate, seek an allowance in the amount of $20,000 for attorneys’ fees, to be charged personally against the respondent pursuant to SCPA 2302(3)(a). Respondent likewise seeks an allowance in the amount of $20,000 for expenses incurred in the contest.

A New York Will Lawyer said that this proceeding involved the probate of an instrument dated June 2, 1977 and a codicil dated August 11, 1977, both of which were offered for probate by the decedent’s stepson. The earlier instrument names respondent as executor and trustee. The second instrument names the respondent as executor and trustee, and five alternate executors.

Brooklyn Probate Lawyers said it is undisputed that respondent was the attorney-draftsman of both instruments as well as a witness to the instruments along with his wife. All of the competent beneficiaries consent to probate of the will and codicil and the guardian ad litem for one of the decedent’s daughters has filed a report stating that he can find no basis for objecting to the validity of the instruments.

Bronx Probate Lawyers said the respondent is not a beneficiary of the decedent’s estate under either of the instruments, nor is he a distributee. His standing, if any, to object to probate of the codicil would be on the basis of his nomination as executor in the earlier instrument. Respondent moved for an order granting him permission to file objections to that part of the codicil which substitutes as executor. He alleged that the co-executor had breached an agreement with the decedent to retain him as the attorney for the estate.

By decision, the court determined that respondent had failed to establish good cause pursuant to SCPA 1410 to entitle him to file objections to probate, and the objections were dismissed.

In connection with his present application for costs, Respondent contends that since his challenge to that part of the codicil pertaining to the appointment of a fiduciary was consistent with his duty to offer the earlier instrument for probate, he is entitled to an allowance in the amount of $20,000.

Section 2302 subd. (3)(a) of the Surrogate’s Court Procedure Act provides that: “Costs payable out of the estate or otherwise may be awarded (2) to an unsuccessful proponent named as executor in the will when propounded in good faith as the last will of the decedent”.

This provision has been interpreted as providing for the allowance of costs to an executor who offers one instrument for probate, and becomes a contestant to a later instrument, the validity of which is sustained. Under these circumstances the nominated executor is entitled to reimbursement for expenses even though he is not the proponent of the instrument which is the subject of the contest.

In the present case, Respondent is a contestant in the proceeding to probate the codicil, but he was not a proponent of the earlier instrument, the June instrument having been offered for probate by the co-executor. He thus does not fall under the provision authorizing costs to an unsuccessful proponent. Respondent was not the proponent of any instrument.

Moreover, had the respondent offered the earlier instrument for probate, he would still be denied costs for having failed to satisfy the “good faith” requirement of the statute. Respondent rendered no services which were beneficial to the estate. Instead, he sought to prevent probate of the codicil to further his own interests in becoming an executor of the estate and a trustee or becoming the attorney for the estate. Respondent is not entitled to reimbursement for any costs or allowances, including attorneys’ fees.

Generally, expenses incurred by an executor in a probate contest are paid from the assets of the estate. However, where a contestant in a probate proceeding is unsuccessful and the court finds that there is no substantial basis for his attack on the validity of the instrument, the contestant may be required to furnish some or all of the expenses incurred by the contest. However, the costs and allowances pursuant to Section 2302 that may be awarded are limited by the statutory provisions set forth in SCPA 2302. There has been legislation proposed to enhance the extent of allowances to be charged against unsuccessful parties, but such legislation has yet to be enacted.

In the present case, the court determined in its decision that Respondent’s allegations were without sufficient basis to permit him to file objections to the codicil. Respondent nevertheless persisted in his attempts to block its probate despite the fact that he was not only the attorney-draftsman, but a witness to the codicil. His attempt to resist probate for the purpose of accomplishing his own appointment as executor of the estate resulted in unnecessary delay and expense in the administration of this estate.

Accordingly the court finds that the executor is entitled to costs and allowances in the amount of $150 pursuant to SCPA 2302 subd. (2)(b) to be charged personally against Respondent.

An executor is a person named by the testator to implement the provisions in his Will. Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers will assist the executor for the probate of the will. Upon the allowance of the will, the latter’s provisions will take effect. We also have Nassau County Estate Administration attorneys who will help these executors to manage the estate of the decedent.

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