Matter of Mankin

[*1] Matter of Mankin 2005 NY Slip Op 50036(U) Decided on January 21, 2005 Surrogate's Court, Nassau County Riordan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 21, 2005
Surrogate's Court, Nassau County

In the Matter of the Probate Proceeding, Estate of JANEY MANKIN, Deceased.



330328

John B. Riordan, J.

This is a motion pursuant to CPLR 3211 (a) (7) to dismiss objections filed to the probate of the decedent's Last Will and Testament dated October 9, 1998 for failure to state a cause of action. The decedent, Janey Mankin, died on October 13, 2003. She was survived by three children; Howard Mankin, Beth Sirchio and Mitchell Mankin.

The decedent's Last Will and Testament nominated Howard Mankin and Beth Sirchio as successor co-executors. The decedent's estate is divided between her two children, Howard Mankin and Beth Sirchio. Article Ninth of the Will provides the following: "[a]s used in this Will, the term 'children' shall refer only to my son, Howard and my daughter, Beth, and not to my son Mitchell, and the terms 'issue' and 'descendant' and like terms shall refer only to Howard and Beth, and their respective issue. I specifically disinherit my son, Mitchell and all of his issue".

Mitchell Mankin objected to the probate of his mother's Will on the grounds that the "instrument offered for probate was not intended by the decedent to be her last will and testament in that the decedent was prevented from making a new will to correct her mistake in eliminating objectant from her testamentary plans".

The executors have now moved to dismiss the objection pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The guardian ad litem appointed to represent the minor children of Beth Sirchio and Howard Mankin, who are contingent trust remainder men, joins in the application.

The objectant argues that the motion must be denied because the act of preventing someone from making a Will is recognized as a valid claim in a probate proceeding in New York and cites Matter of Coletta (NYLJ, July 14, 1999 at 31 col. 1) in support of his position. As explained more fully below, the objectant's reliance on this case is misplaced.

In New York, a Will must be admitted to probate "[i]f it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under any restraint..."(SCPA 1408[2]). In the instant proceeding, there has been no allegation that the Will was not duly executed, that the testator was incompetent to make a Will or that she was under any restraint.

Where objections to the probate of a Will include a claim that the decedent was prevented by fraud and undue influence from revoking a Will or making a new Will, courts have traditionally held that "[w]hile the allegations may form the basis for an attack upon the gifts to which the legatees may be entitled upon the admission of the will to probate, they do not [*2]constitute legal objections to the validity of the will itself"(Matter of Winters, 198 Misc 87 [1950] affd on other grounds 277 AD 24 [1950] ; see also Matter of Oberg, 98 NYS2d 877, 1950 NY Misc Lexis 1847 [1950]). [FN1]

However, in limited circumstances and where the objections to probate are intertwined with the question of whether a constructive trust should be imposed or whether there was interference with the execution of a new Will, the court may consider all of these objections in the probate proceeding. Thus, in Matter of Artope (144 Misc 2d 1090 [1989]) the court allowed a constructive trust claim to go forward as part of the probate proceeding as "the objectant's allegations may result either in a determination of actual fraud in the procurement of the will which is endemic to a probate contest and would invalidate the will or the imposition of a constructive trust"(Matter of Artope, 144 Misc 2d 1090, 1093 [1989]). The court found that "an attempt to separate [the objections] would only impede an ultimate resolution and serve no useful purpose" (Matter of Artope, 144 Misc 2d 1090,1093 [1989]).

In Matter of Coletta (NYLJ, July 14, 1999 at 31, col. 1), the objectant claimed that the decedent was fraudulently induced into executing a Will in a manner differently than she would have in absence of the false statement and that the decedent was prevented from making a new Will. The court held that there was sufficient evidence on the issue of undue influence to warrant a trial on both objections (Matter of Coletta, NYLJ, July 14, 1999 at 31, col.1).

In the instant proceeding, there has been no allegation that the decedent lacked testamentary capacity to execute the Will that is being offered for probate, that the Will was not duly executed or that the decedent was unduly influenced into executing the Will. Unlike the circumstances in Matter of Coletta (NYLJ, July 14, 1999 at 31, col.1), the claim in the instant proceeding that the decedent was prevented from making a new Will has no connection whatsoever to the proceeding to probate the decedent's Last Will and Testament dated October 9, 1998.

For all of these reasons, the application is granted and the objection is dismissed.

Settle decree on notice.

Dated: January 21 , 2005

JOHN B. RIORDAN

Judge of the

Surrogate's Court

Footnotes

Footnote 1:There have been several cases in New York where force, coercion, undue influence and/or fraud, prevented a testator from preparing a new Will (see Latham v Father Divine, 299 NY 22 [1949] and Dawson v Vasquez,139 Misc 2d 588 [1988]). In those cases the Wills were previously admitted to probate and the court imposed a constructive trust upon the offending legatee's legacy to satisfy the needs of justice, the theory being that "the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefitted by the testator, and compels the legatee as trustee ex maleficio, to turn over the gift to them" (Latham v Father Divine, 299 NY 22, 30 [1949] citing Ahrens v Jones, 169 NY 555 [1902]).