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Court Decides Will Contest Issue


A father of three children died on December 26, 1960 in New York County. In January of the following year, a petition for the probate of two presented wills was filed in New York County Court. The petition was filed by the special guardian for the children alleged that the deceased father resided at Park Avenue, New York City and that his legal heirs were his three children.

A New York Probate Lawyer said the petition stated that the deceased father and his former wife had been married and divorced. The special guardian did not believe that the former wife was an heir of the deceased. The will presented claimed to be the deceased father’s will, bestowed the former wife with $50,000. Supplement to the presented will nominated the former wife as guardian of the infant son of the deceased. The former wife carried out a paper including an appearance in the trial, a waiver of the service of citation and a specific consent that the presented will be admitted for validation. The attorneys representing the former wife filed an authorized notice of appearance on her behalf as the appointed guardian of the infant son of the deceased. The special guardian representing the infant filed his report recommending validation. Since there was no objection to the validation of the will was filed, the proof was taken in respect of implementing the presented will, the capacity to execute a will of the deceased and his freedom from control. Thereafter, a ruling was made admitting the presented will for validation and granting letters of administration and letters of trusteeship.

On June 1961, the former wife filed a petition individually and as general guardian of the infant son, asking that the validation ruling be opened, cleared out and set aside. The stated basis is that the deceased father was not a resident of New York County but was a resident of Suffolk County. The petition in the revocation trial admits that all the facts upon which the former wife’s accusations of residence are based within her knowledge at the time she appeared in the validation trial and consented for validation. She alleges that she did not notice that the trial was in New York County. Staten Island Probate Lawyers he failure to notice occurred when a copy of the citation was served to her, when she later executed a waiver and consent to the validation and when she executed an affidavit and acknowledged an authorization for her attorneys to appear for her as the appointed guardian. The attorneys then appearing do not represent the former wife on the application. The administrators of the will made an appeal to dismiss the petition.

The former wife, not being an heir of the deceased would have no position to make the will contest and as a beneficiary, it is to her benefit to withstand the will. The petition gives no indication of the former wife’s motive in making the application. Obviously, to forgo the validation ruling must result in an additional expense to the estate which will not be imposed upon the former wife as a general beneficiary but upon the remainder property where the infant has a 40 per cent interest. Suffolk County Probate Lawyers said that in the validation trial, neither the appointed special guardian of court nor the former wife who appear as the appointed guardian, found any occasion to object to the validation. It must be presumed that no advantage will add to the infant by a second validation in another county.

The disagreement of the former wife is based upon the Surrogate’s Court Act. It is argued that if the deceased father was a resident of Suffolk County, the ruling of the New York County court is void and must be withdrawn. Inasmuch as a motion has been made to dismiss the petition, the accusation of the petition as to the residence of the deceased in Suffolk County must be accepted for the purposes of the appeal.

The exclusive jurisdiction caption in the Surrogate’s Court Act could be misleading in its use of the word jurisdiction. It hardly can be argued that the jurisdictional basis for taking the proof of a will inasmuch as such authority is within the general jurisdiction of the court. The plain purpose of the law was to establish the venue for trial in the Surrogate’s Court. Without the ruling’s fix venue, the petition in the Surrogate’s Court would have the privileged to be filed in any county within the State disregarding the residence of the deceased or the location of his assets. Not only such privilege can be abused to harass the interested persons and subject them to expense and inconvenience at the urge of a petitioner or his attorney but such privilege could result in either obstruction of the trial in a single county or the institution of separate trial in several counties involving a single deceased. By reason of the Surrogate’s Court Act, any action by a Surrogate in disregard of the rulings necessarily would be incompetent. The ruling is strictly adhered to when the question of residence is raised in a pending validation trial. In the case presented, a question of residence was not presented to the court in the validation trial and upon the facts alleged in the pleadings and unchallenged by the parties of the court who had the exclusive jurisdiction of the Surrogate’s Courts of other counties. The ruling made in the validation trial likely established the court’s jurisdiction.

The authorities established that a validation ruling is not subject to collateral attack solely upon the ground that the validation trial, properly instituted in New York was brought in the wrong county. The court implies that the person who filed the petition is bound by the validation ruling. The issue of residence was presented by the validation petition and the accusation of residence in New York County was beyond doubt. The making of the validation ruling include the finding of residence which is binding upon the parties. The basic jurisdiction of the matter lay in the Surrogate and the necessity for finding residence in a particular county was created only by a rule of convenience partaking of the character of matters of procedure which has been considered of very slight importance. Those who filed the petition who seek to annul the ruling had every opportunity to challenge the accusation of residence but she chose not to. The court had jurisdiction of the subject matter by reason of the deceased father’s residence in New York State and the court had jurisdiction of the parties. The real basis for the attack upon the ruling is a later discovered dissatisfaction with a fact finding and was not made into an issue in the validation trial. The former wife certainly is not in a reasonable position to demand revocation since she has neither established a legitimate excuse for her failure to raise the fact issue in the required time nor established the damage to her of the existing ruling.

A basis does not exist to revoke the ruling of the Surrogate’s Court Act, although the motion offers the law as a basis for the petition. Nothing in the petition establishes, or intimates fraud, newly discovered evidence, clerical error, or other sufficient basis, which are the essentials to the action. The former wife does not rely upon fraud, newly discovered evidence or clerical error. She does argue that she failed to take notice of either the claims in the validation trial or the several writings which she signed in connection with the said trial. The indifference on her part cannot be regarded as the other sufficient basis, particularly in view of the fact that the definition of the legal expression has been limited by the words preceding it in the law. The motion to dismiss is granted.

The names that we find in a last will and testament may be the person or persons that is trusted the most by an individual who made the will. When such trust is in question, visiting one of the offices of Stephen Bilkis and Associates to consult with their New York Will Contest Attorneys might be a good idea. If we are appointed to facilitate properties, we can confer with a New York Estate Administration Lawyer. We can also rely on the expertise of a New York Probate Attorney with regard to queries on validation of wills.

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