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Will Contest Ends in Summary Judgment


Matter of S.

2017 NY Slip Op. 07446

October 25, 2017


This case is an appeal from Kings County Surrogate Court. The order vacated a prior order from July 2015 which denied the motion of CB and ME for a summary judgment, dismissing BB’s objections to probate.

The court ordered that the prior order is affirmed.

This case involves the will of FS (decedent). The will was signed in 1976 and the decedent passed away in 1980. BB the daughter of the decedent signed a consent to probate in October of 1980. A grandchild of the decedent moved to vacate the probate, arguing that several distributes were left out of the petition. The court granted the motion and stated that if the jurisdiction hasn’t been obtained over a “necessary party” the decree is void concerning that party.

RP filed two amended probate petitions. BB filed objections based on undue influence and lack of capacity. Then, CB and ME who were grandchildren of the decedent moved for a summary judgment. The court denied the motion. CB and ME tried to renew the summary judgment motion. The court granted leave to renew dismissing BB’s objections. BB appealed, and during the appeal died. The executors of BB’s estate are representing her.

The court determined that the prime order vacated the decree only as to the distributes who didn’t have jurisdiction. BB never moved to vacate the content to probate the will. Therefore, she was prevented from objecting to the probate because of her prior consent to probate the will (Matter of Bryer 72 AD3d 532, Wilds v. Heckstall 93 AD3d 661).

The court therefore properly vacated its original determination and granted the grandchildren their motion for summary judgment.

When a person passes away, their estate goes through the probate process. This process is supervised by the probate court. If the decedent had a will, the court will look to determine if the will should be given legal effect.

Unfortunately dealing with the death of a loved one is a difficult task, and we will have to deal with this type of situation at least once in our lives. The process of probate involved authenticating the will. The process will also involve gathering and determining the assets in the estate, distributing them, and paying all the final bills and taxes.

Often times, things can go awry. Family members are stressed, and they may take exception to how the will was written. They may feel that the will is not valid, and their loved one would never have written it that way. They would then allege undue influence or lack of capacity. These court battles can be lengthy and take an emotional toll on all who are involved.

If you are involved in a probate litigation matter or have an estate administration problem, contact Stephen Bilkis and Associates for guidance. We can help sort out the details of your case and lay out what legal options you have. We can create a plan moving forward that will make sense for you and your loved ones.

We have offices to serve you throughout the New York area, including locations in Manhattan, Queens, the Bronx, Brooklyn, and Staten Island. We also have offices in Nassau County, Suffolk County, and Westchester County. Call us today to schedule your free consultation at 1-800-NYNYLAW.

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