Matter of Andrasko

[*1] Matter of Andrasko 2006 NY Slip Op 52351(U) [13 Misc 3d 1245(A)] Decided on December 6, 2006 Sur Ct, Rockland County Berliner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2006
Sur Ct, Rockland County

In the Matter of the Probate Proceeding, Will of Frank Andrasko, Deceased.



2005/610/B



Steven G. Levy, PLLC, Atty for Petitioner

Hugh Janow, LLC, Attys for Respondents

Robert M. Berliner, J.

In this probate proceeding Anne E. Katz has petitioned the court to vacate the probate of decedent's will dated October 19, 1992, and to permit her to file objections to the probate. The decedent died on August 30, 2005. The will was admitted to probate by this court on September 19, 2005, and the estate was distributed in April, 2006.

An answer and amended answer and objections to her petition were filed by the executor, a grandson of the decedent, and two other grandchildren. Following a conference with the court on October 3, 2006, the parties attempted to reach a settlement, but were unsuccessful. Thereafter the matter was submitted to the court for a decision on the papers, including a reply, a sur-reply, and an additional affidavit in support of the petition.

Petitioner raises several arguments in support of the relief requested, primarily that she is in possession of a later will dated September 10, 2001, in which she is named executor and a beneficiary. She states that she was neither cited nor waived citation in the proceeding which granted probate to the 1992 will,[FN1] and that she intends to file objections to the probate based on the later will. She also alleges that the decedent, who died while an inpatient at a nursing home in Bergen County, New Jersey, was a resident of Manhattan, and not of Rockland County as alleged in the petition which resulted in the probate decree, and that, therefore, the proceeding should not have been brought in this court. Petitioner filed the purported will, dated September 10, 2001, in this court on May 12, 2006, and filed her petition to vacate probate on May 25, 2006.The respondents, by their answer and objections, allege that the petition should be denied because the petitioner is guilty of laches, based on her unexplained and unjustified delay in offering the purported later will for probate and in bringing the instant proceeding, which will result in substantial prejudice to them if she is successful. They further argue that petitioner is unable to demonstrate a likelihood of success on the merits, because the 2001 purported will is not likely to be admitted to probate. They maintain that the 2001 document is suspicious on its face, that the decedent lacked testamentary capacity in 2001, and that the 2001 document was the product of undue influence.

In her reply petitioner counters that she is not guilty of laches, that the court should consider the "new evidence," i.e., the 2001 purported will, offered as a basis to vacate the decree, that the delay was not unreasonably long, and that the respondents have unclean hands because they were made aware that the 2001 document existed by letter dated January 4, 2006. She also [*2]avers that her attorney was delayed in filing a probate petition because he had difficulty in obtaining a certified copy of decedent's death certificate, and that the attorney filed a notice of appearance in the probate proceeding in May, 2006.[FN2] She also denies respondents' claims of lack of testamentary capacity and undue influence and alleges that the execution of the 2001 document was supervised by an attorney-draftsman.

Respondents, in their sur-reply, argue that the presumption of undue influence in this case must be overcome by petitioner in order to demonstrate a likelihood of success on the merits, and that she has failed to do so. They allege that the attorney-draftsman of the 2001 document was or is petitioner's attorney, that petitioner had a confidential relationship with decedent, that decedent would not have been physically able to attend the execution of the will unless petitioner had accompanied him. They also state that the petitioner has failed to submit sworn statements from herself and the attorney-draftsman to refute the allegations of undue influence. Finally, they argue that petitioner's present situation is one of her own making, since she failed to do anything to preserve her rights before the probate was final, despite being in possession of the 2001 document and being aware that there was a pending probate proceeding.

After the sur-reply was filed, petitioner submitted an affidavit from the attorney draftsman who was one of two witnesses to the 2001 document, attesting to its due execution. The other witness is deceased. Although leave of court was not obtained before filing this affidavit, the court will accept it, for whatever value it has.

An application to vacate a probate decree is addressed to the discretion of the court, and the decree should be vacated only in extraordinary cases. Matter of Ogden, 11 Misc 2d 1010 ( Sur.Ct. Stuben County, 1958). To justify opening or vacating a decree admitting a will to probate a petitioner must show to the satisfaction of the court: 1) that she has standing, 2) facts sufficient to demonstrate a substantial basis for contesting the will, and 3) a reasonable probability of success on the merits. In the present case, respondents have raised the defense of laches to the petition. A Surrogate may refuse to vacate a probate decree if laches exists to such an extent that granting the relief would be unjust and inequitable. Id. at 1014. What constitutes laches depends on the circumstances of a particular case and rests in the discretion of the court. Matter of Hug, 201 Misc. 709 (Sur. Ct. NY County, 1949).

The facts as presented here demonstrate that petitioner comes before the court with less than clean hands. She has failed to explain why she did not file objections to the probate of the earlier will before the probate decree became final. Clearly she could have done so under SCPA §1410. Alternatively, she could have filed the 2001 document and a petition for its probate before the decree was final. Doing so would have caused the probate to be held in abeyance until the validity of the 2001 document was determined. She has not offered any valid excuse for failing to act in a more timely manner. The excuse that her attorney had difficulty obtaining a certified copy of decedent's death certificate is meritless; the court already had a certified copy of the death certificate on file in the probate matter, and another would not have been required. Her assertion that the 2001 document is "new evidence" entitling her to relief under CPLR 5015(a)(2) is totally without merit. That section which provides for relief from a judgment or order in a civil action, specifically refers to "newly-discovered evidence . . . which could not [*3]have been discovered in time to move for a new trial . . ." The document in question is not "newly discovered," since petitioner has had it in her possession presumably since decedent's death.

In the instant case, petitioner has failed to demonstrate that she is entitled to the relief requested. Whether the court labels her actions a waiver, or determines that she is guilty of laches, the fact remains that petitioner has provided no explanation for her delay of over ten months from the decedent's death, eight months after probate was granted, and four months after she notified respondents that she had a purported later will, to take any action to preserve her position. At the very least she should have filed the will with the court and thereby stopped the probate from proceeding until the court had obtained jurisdiction over all partes adversely affected by the 2001 document. By awaiting the outcome of the probate proceeding and then attempting to assert her rights, the court finds that she effectively waived her right to object to the earlier will. See Matter of Flammia, NYLJ 1/24/06, Sur. Ct. Queens County.

In addition petitioner has failed to overcome respondents' serious allegations concerning undue influence and decedent's lack of testamentary capacity, and has thus failed to demonstrate a likelihood of success on the merits. And, finally, the prejudice to respondents, who relied on the validity of the decree, would be very great. The court therefore finds that she is guilty of laches.

Finally petitioner's contention that the probate should be vacated because decedent was not a resident of Rockland County is without merit. This court had jurisdiction of the estate of decedent who was a domiciliary of New York. SCPA §205(1). Even if decedent's domicile at the time of death was Manhattan, as petitioner alleges, that is a question of venue, not jurisdiction. Once probate was granted by this court, this court retains jurisdiction of the estate for all other issues related to the estate. Turano and Radigan, New York Estate Administration, §1.02(b), Matthew Bender, 2006

The petition to vacate probate is denied.

Settle decree.

Dated: New City, New York

December 6, 2006

Surrogate

TO: Footnotes

Footnote 1: The court notes that petitioner was not cited in the probate proceeding because she was not a necessaryparty in that proceeding. SCPA §1403.

Footnote 2: The court notes that this was eight months after probate was granted.