Court Discusses Jurisdiction of Distributees and the Doctrine of Laches in Probate Matter – Nechin-Pescow v. S (In re Schnall), 154 A.D.3d 951 (N.Y. App. Div., 2017)

In this case the Surrogate’s Court considered the issue as to whether to entertain an objection to probate of a will 30 years after it was originally admitted to probate.

This case relates to the probate proceeding of the will of decedent Schnall. Schnall executed the will in 1976. She died in 1980. Bostwick, Schnall’s daughter, consented to probate. The will was admitted to probate in a decree dated November 13, 1980. In 2009, nearly 30 years later, one of the decedent’s grandchildren filed a motion to vacate the probate decree. The basis of the motion was that several distributees of the decedent had not been named in the probate petition. In 2010 the Surrogate’s Court granted the motion, finding in instances where jurisdiction was never obtained over a necessary party, the decree admitting the will to probate is void as to that party.

Nechin-Pescow filed an amended probate petition in 2013 and filed a second amended probate petition ion 2014. Bostwick objected to probate, arguing undue influence and a lack of testamentary capacity. Two grandchildren of Schnall, Beesmer and Elchoness, filed motions for summary judgment dismissing Bostwick’s objections. The Surrogate’s Court denied the motion.

The two grandchildren then filed a motion with the Surrogate’s Court for leave to renew their motion for summary judgment dismissing Bostwick’s objections. The court granted leave to review and granted their motion for summary judgment dismissing Bostwick’s objections. Bostwick appealed. However, while her appeal was still pending, Bostwick died. Her executors were substituted for in the probate case.

The Surrogate’s Court found dismissed Bostwick’s objections. It concluded that the 2010 decree vacated probate only as to the grandchildren and any other distributees over whom jurisdiction had not been obtained back in 1980. In addition, the court found that Bostwick never filed a motion to object to her 1980 consent to probate. The court concluded that given that Bostwick waited over 30 years to object to probate of Schnall’s will and that there would be prejudice resulting from that delay, the doctrine of laches barred Bostwick from challenging the will. Thus, the court granted the motion of Beesmer and Elchoness, for summary judgment dismissing Bostwick’s objections to probate.