Articles Posted in Probate & Estate Litigation

In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a  party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed.  This means that all interested parties must be notified and given the opportunity to object to the will.  Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors.  In addition to listing the names of interested parties on the citation, the petitioner must send each of them a  notice known as “citation.”  This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings.  For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will.  However, anyone entitled to a citation can waive it.  On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate.  This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently.  Three days after the decedent passed away, his funeral was held.  At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it.  E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it.  After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver.  The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

The issue before the Surrogate’s Court is whether a will was properly executed.  New York estate law requires that in order for a will to be valid, it must meet certain technical requirements related to execution. That is the requirement now, and it was also the requirement decades ago when the will at issue in this 1954 Surrogate’s Court case was executed.

Decedent Estate Law, § 21 provides that in order for a will to be valid, there are 4 requirements related to execution: 1.  The will must be signed by the testator at the end.  2.  The testator must sign the will in the presence of two attesting witnesses.  Otherwise, the testator must acknowledge to the witnesses that he signed the will.  3.  At the time that he signed the will or acknowledged that he signed the will, the testator must also declare to the witnesses that the document that he signed was indeed his last will and testament.  4.  The two attesting witnesses must also sign the will at the end.

In the case of In re Levine’s Will, the court had to decide if the second requirement was met that the decedent signed her will in the presence of two witnesses, or acknowledged to the witnesses that the signature on the will was indeed hers.  One of the witnesses, Glackman, was not present when the decedent, B. Levine, signed her will.  Therefore, in order for the execution of the will to be compliant with the statute, the decedent must have acknowledged to Glackman that she did actually sign the will.  Levine did not do this.

In this case, the Surrogate’s Court was asked by two of the decedent’s creditors to revoke the estate administrator’s letters of administration because in petitioning the court for letters of administrator, the petitioner mispresented his status as a distributee of the decedent’s estate.

The decedent, J. Young, was a successful songwriter.  He died in 1939 intestate.  The term “intestate” means that Young died without having executed a valid will.  He was survived by his spouse and his father. Under New York’s intestacy laws, they were his only distributees. In May 1939, Young’s wife was appointed administrator of his estate. She died in November 1973, leaving a properly executed will that named co-executors.

In September 2009, the grandnephew of the decedent, N. Young, petitioned the court for letters of administration de bonis non with respect to the decedent’s estate. Pursuant to  Surrogate’s Court Procedure Act § 1007 , letters of administration de bonis non are letters that allow for the administration of assets that remain in an estate in situations where the  original executor or previous administrator is unable to do so.  The petition filed by the grandnephew, the respondent in this case, was supported by waivers and consents of twenty-one of the distributees identified.  A citation was issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.