Matter of Pegues

[*1] Matter of Pegues 2005 NY Slip Op 50818(U) Decided on June 2, 2005 Surrogate's Court, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 2, 2005
Surrogate's Court, Bronx County

In the Matter of the Estate of Lilly Pegues, Deceased.



675-P/03

Lee L. Holzman, J.

In this proceeding to probate a will dated March 6, 1979, the proponent moves to dismiss the objections filed by the administratrix of the Estate of Homer White. Homer White postdeceased the decedent. The decedent's house, which appears to be the major asset of her estate, is devised to Homer White under a will dated September 18, 1989. The objectant alleges that the 1989 will revoked the 1979 will. Based upon the objectant's inability to produce the original of the 1989 will, the movant asserts that, pursuant to SCPA 1410, the objectant lacks standing to file objections to probate.

The movant fails to state whether her motion is a motion to dismiss based on the pleadings or a motion for summary judgment. The extremely limited factual allegations made by both sides to this motion raises the question of whether, even if no objections are interposed, the court, as required by SCPA 1408, will ultimately be satisfied that either the 1979 or the 1989 will is entitled to be admitted to probate.

To the extent that this motion is deemed to be addressed to the pleadings, it must be denied. SCPA 1410 provides that "any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate" has standing to file objections to probate. Here, the decedent's house is devised to Homer White instead of the devisees under the 1979 will in the event that the 1989 will is admitted to probate. Notwithstanding that the objectant has not produced the original of the 1989 will, it is possible that the copy filed may be admitted to probate as a lost will pursuant to SCPA 1407.

To the extent that this is deemed to be a motion for summary judgment, the sole allegation made by the movant with respect to whether the 1989 will may be admitted to probate pursuant to SCPA 1407 is that an "investigation" has revealed that the 1989 will was in the possession of the decedent prior to her death and that, inasmuch as the original will cannot be produced, the only logical conclusion is that the will was destroyed with the intention of revoking it. There is a presumption that the decedent revoked her will where the original of a will in her possession cannot be found after her death (Matter of Fox, 9 NY2d 400, 407-408 [1961]; Matter of Staiger, 243 NY 468, 472 [1926]; Matter of Evans, 264 AD2d 482 [1999]). However, the movant fails to elaborate upon the "investigation" which established that the will was in the decedent's possession prior to her death. The affirmation of an attorney, who worked in the law office where the 1989 will was executed and who was one of the attesting witnesses to that will, was submitted by the objectant for the purpose of raising a question with respect to whether the 1989 will was destroyed prior to the decedent's death. The attorney affirms that Homer White [*2]came to his office with the decedent's "Will or copy thereof" after the decedent's death to discuss the probate of her will.

The court cannot grant summary judgment in favor of the movant on the sparse record presently before it. Furthermore, even if the objections were to be dismissed at this time, the court would still have to conduct an inquiry into whether the 1989 will was duly executed at a time when the decedent was competent to make a will and not under restraint. The court, pursuant to SCPA 1408, is required to conduct such an inquiry because if the 1989 will was a valid will when it was executed, the fact that it was thereafter revoked "does not, of itself, revive" the prior will (1979) or any provisions thereof" (EPTL 3-4.6).

Although the court has not found a basis to dismiss the objections at this juncture of the proceeding, the objectant's standing in this proceeding depends upon whether the 1989 will may be admitted to probate pursuant to SCPA 1407. This cannot be accomplished without her filing a probate petition and obtaining jurisdiction over the necessary parties. Judicial economy dictates that the issues with respect to the 1989 will be determined prior to addressing the issues with respect to the 1979 will. The parties are directed to appear before the court on June 29, 2005 at 9:30 a.m. to discuss the procedures and time-table to be followed so that the issues raised herein may be litigated with reasonable expedition.

This decision constitutes the order of the court. The Chief Clerk shall mail a copy of this decision and order to respective counsel.

Dated: June 2, 2005

SURROGATE