Matter of Ducker

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[*1] Matter of Ducker 2013 NY Slip Op 51632(U) Decided on August 28, 2013 Sur Ct, Nassau County McCarty III, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 28, 2013
Sur Ct, Nassau County

In the Matter of the Probate of the Last Will and Testament of Aaron Ducker, Deceased.


Judith L. Freedman, Esq.

230 Ridgecrest Road

Briarcliff Manor, NY 10510

(for petitioner)

Edward W. McCarty III, J.

Before the court is a petition for the probate of two instruments: a March 10, 2005 last will and testament (hereinafter referred to as the "later will") and an instrument dated November 5, 2011 which purports to be a codicil (hereinafter referred to as "the codicil") to a last will and testament dated January 27, 2005 (hereinafter referred to as "the earlier will"). Thus, the petition seeks to probate the later will and the codicil, even though the codicil by its terms indicates that it is a codicil to the earlier will. The petition does not seek probate of the earlier will.

The predominant provision in the earlier will is the creation of a supplemental needs trust for the benefit of decedent's son Warren Ducker to continue for his lifetime. The later will revokes all prior instruments and, while it too provides for the creation of a supplemental needs trust for Warren, it also provides for termination of the trust and payment of the corpus outright to Warren if he ceases to receive Medicaid benefits.

Both wills contain specific bequests of $10,000 each to the decedent's two daughters-in-law and his grandson. The only dispositive provision of the codicil is to revoke these preresiduary bequests. Petitioner's position appears to be that the later will is the last will and testament and the codicil revokes the preresiduary bequests in that instrument even though, as indicated above, it is designated as a codicil to the earlier will.

If the earlier will dated January 27, 2005 is in his custody and control, petitioner is directed to file the same with the court within 14 days of this decision. If it is not, he is directed to so advise the court within the same 14-day time period.

A codicil is a modification or supplement to an existing will (EPTL 1-2.1). A codicil to a previous last will and testament may be deemed to have republished the will even if it was revoked by an intervening last will and testament (Matter of Campbell, 170 NY 84 [1902]; Matter of Munzer, 31 Misc 2d 691 [Sur Court, Nassau County 1961]). But that is not the relief sought here. Rather, the petition seeks to have the codicil modify an instrument other than the [*2]one to which it refers. The instrument dated November 5, 2011 cannot be probated as a codicil to the later will unless there is sufficient proof of mistake to warrant reformation of the codicil to refer to the later will rather than the earlier will.

It is not clear whether probate of the March 10, 2005 instrument is in the best interests of Warren Ducker, as the provision which modifies the January 25, 2005 instrument may not meet the statutory requirements of a supplemental needs trust. Therefore, the petitioner is also directed to provide an explanation of Warren Ducker's disability so that the court can determine whether the appointment of a guardian ad litem is necessary to protect his interests.

This matter will appear on the court's calendar for conference on September 19, 2013 at 9:30 a.m.

This is the decision and order of the court.

Dated: August 28, 2013


Judge of the

Surrogate's Court