Matter of Dobbs

[*1] Matter of Dobbs 2009 NY Slip Op 50589(U) [23 Misc 3d 1105(A)] Decided on April 7, 2009 Sur Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2009
Sur Ct, Bronx County

In the Matter of the Wills of Warren M. Dobbs, ALICE DOBBS, ESTHER RIVAS, AGNES RIZZO and FRANK RIZZO



SK1-5/09



Michael J. Derevlaney, Esq., pro se, petitioner

Lee L. Holzman, J.

The court received in the mail from an attorney in Rensselaer County five original wills purportedly executed by the above-named individuals, with a cover letter stating that he found the wills in the files of a deceased attorney and, "despite diligent efforts," he was unable to locate any of the makers. The wills were all executed in the 1970's by persons apparently then living in Bronx County, and a review of court records indicates that no proceeding was filed in this court with respect to any of them.

Issues as to what action should be taken with respect to original wills found in the possession of a deceased attorney are a matter of concern to professional organizations of the trusts and estate bench and bar but, to date, no statute or rule has been promulgated to address the situation. It should be kept in mind that if these instruments are filed for safekeeping in a surrogate's court, additional parties might have to be served with process in the event that another instrument is offered for probate thereafter (see SCPA 1403 [1] [d]). Inasmuch as the Office of Court Administration (OCA) is presently charged with the responsibility of maintaining records with respect to the status of practicing attorneys, it might be appropriate for OCA to provide a place for the safekeeping of original wills found in the possession of deceased attorneys to ensure there is one central location where a search can be conducted to determine whether a decedent made a will and entrusted the original to an attorney who subsequently died.

Here, in light of all of the circumstances leading to the delivery of these instruments to the court, and considering that there have not been frequent demands on this court for the filing of wills made by persons who may or may not be alive and whose residences or places of death are unknown, it would be inappropriate to charge filing fees to the estate of the deceased attorney or the attorney winding up that practice. Moreover, it would not be cost effective to make further attempts to ascertain whether any of the testators are alive and, if so, whether they want their wills filed for safekeeping. Accordingly, the court exercises its discretion pursuant to SCPA 2402 (9) (v) to dispense with the filing fees for safekeeping of each of the above wills. [*2]

This decision constitutes the order of the court directing the Chief Clerk to file each of the above wills for safekeeping, and dispensing with any filing fees in connection therewith.

SURROGATE