Matter of Wilke

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[*1] Matter of Wilke 2019 NY Slip Op 51220(U) Decided on July 30, 2019 Surrogate's Court, Albany County Pettit, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2019
Surrogate's Court, Albany County

In the Matter of the Probate Proceeding for the Estate of GEORGE Wilke, Deceased.


Max Smelyansky, Esq., Attorney for Petitioner Dianna Brenn, 602 Central Avenue, Ste. 102, Albany, New York 12206

James G. Snyder, Esq. Attorney for movant Rickardo O'Hara Smith, Snyder, Kiley, Toohey, Corbett & Cox, LLP, 160 West Avenue, PO Box 4367, Saratoga Springs, New York 12866
Stacy L. Pettit, J.

Before this Court is a motion by Rickardo O'Hara Smith (hereinafter movant) for standing to appear in this proceeding as a person adversely affected by the admission of a certain will to probate, permitting movant to request an examination pursuant to SCPA 1404, and permitting movant to file objections to probate.

Decedent died a resident of Albany County on March 3, 2019, survived by three adult children. Prior to his death, in September 2017, decedent filed a will dated May 20, 2016 with this Court for safekeeping pursuant to SCPA 2507. The 2016 will bequeathed decedent's estate to movant, whom he referred to as his "caretaker, friend and God son," and nominated movant as executor. On January 23, 2019, decedent retrieved the 2016 will from safekeeping.

On February 27, 2019, decedent was burned by hot oil at his residence and was transported to a medical facility for treatment. Decedent died a few days later due to complications from his injuries. Approximately one week after decedent's death, a will dated January 7, 2019, was filed pending probate in this Court (see SCPA 2508). The 2019 will bequeathed decedent's estate to Joseph Corrodore and nominated Corrodore as executor. Petitioner Dianna Brenn was named as the contingent beneficiary and alternate executor. Shortly thereafter, petitioner commenced this proceeding to probate the 2019 will and obtain letters testamentary, as Joseph Corrodore is ineligible to act as a fiduciary due to a felony conviction (see SCPA 709). A citation was issued to decedent's distributees. On the return date of the citation, movant appeared with a copy of the 2016 will and thereafter filed this motion to establish his standing to participate in the probate proceeding. Petitioner has opposed the motion and it is now submitted for decision.

As the 2016 will was not filed with Surrogate's Court at the commencement of this proceeding, movant was not a party entitled to be cited (see SCPA 1403). Nonetheless, movant may be entitled to participate in this proceeding pursuant to SCPA 1410, which provides that "[a]ny person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will." "Generally a person who is not a distributee of the decedent and who will receive no part of a decedent's estate if a will is denied probate, will not be permitted to file objections to probate" (Matter of Wharton, 114 Misc 2d 1017, 1018 [Sur Ct, Westchester County 1982]). "The exception is when a person is named in a prior will and his interest under the prior will is greater than under the propounded will" (id.).

Here, movant argues that the admission of the 2019 will to probate would adversely affect him, as he is the sole beneficiary of the 2016 will. Conversely, he contends, the invalidation of the 2019 will would also invalidate the provision therein revoking any prior will; thus, reviving the 2016 will. Movant further asserts that the 2019 will is invalid by reason of failure to observe the formal requisites of due execution, lack of testamentary capacity of the testator, duress and/or undue influence; however, he contends that he lacks sufficient facts surrounding the execution of the will to support filing objections at this time. Movant has also detailed the history of his relationship with decedent, and provided evidence that decedent named him as the beneficiary of several insurance policies, yet did not change the beneficiary designations in 2019 to conform with the 2019 will.

In opposition, petitioner asserts that the 2019 will meets the standards of EPTL 3-2.1 on its face, and contains language revoking any and all prior wills. She further asserts that the 2016 will was removed from Surrogate's Court by decedent and was thereafter destroyed. Accordingly, petitioner asserts there is no basis to invalidate the 2019 will.

Initially, the Court recognizes that movant, as the legatee under a prior will, is a person who would be adversely affected by the admission of the 2019 will to probate. Although movant has only presented a copy of the 2016 will to the Court, such a will may be admissible to probate pursuant to SCPA 1407. That statute provides that "[a] lost or destroyed will may be admitted to probate only if [i]t is established that the will has not been revoked, and [e]xecution of the will is proved in the manner required for the probate of an existing will, and [a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete" (SCPA 1407).

It is worth noting that petitioner alleges that decedent destroyed the 2016 will after retrieving it from this Court's safekeeping, although she does not provide factual support for this allegation. Where an original will was last in the hands of the testator and "'cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator'" (Matter of Fox, 9 NY2d 400, 407 [1961], quoting Collyer v Collyer, 110 NY 481, 486 [1888]). To rebut the presumption of revocation, the proponent "cannot succeed on mere speculation and suspicion[; rather, the proponent] must 'show, by facts and circumstances, that the will was actually fraudulently destroyed'" (Matter of Philbrook, 185 AD2d 550, 552 [3d Dept 1992], quoting Collyer v Collyer, 110 NY at 486).

While it is true that, in probating a copy of a will, movant will face additional burdens beyond those customarily present in a probate proceeding, the Court finds it would be premature to determine at this early stage that movant cannot meet those burdens. At this time, movant has alleged sufficient facts regarding his own relationship with decedent as well as petitioner's and [*2]Corrodore's relationships with decedent to raise questions regarding the validity of the 2019 will and the revocation of the 2016 will (see SCPA 1408; compare Matter of Gottlieb, 75 AD3d 99, 105-106 [1st Dept 2010]). SCPA 201 (3) empowers Surrogate's Court "to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires." The Court finds that movant, as a legatee under a prior will, has standing to appear in this proceeding as a party (see Matter of Thompson, 60 Misc 3d 1227[A], 2018 NY Slip Op 51242[U] [Sur Ct, Kings County 2018]; Matter of Smithers, 56 Misc 3d 1202[A], 2017 NY Slip Op 50831[U] [Sur Ct, Nassau County 2017]; Matter of Kramer, 2011 NYLJ LEXIS 5908 [Sur Ct, Nassau County 2011]; Matter of Werdinger, NYLJ, June 12, 2001, at 33, col 6 [Sur Ct, Kings County 2001], 2001 NYLJ LEXIS 2704; Matter of Jones, NYLJ Oct. 27, 1992 at 30, col 6 [Sur Ct, Nassau County 1992], 1992 NY Misc LEXIS 722; Matter of Aspenleiter, 187 Misc 167, 170 [Sur Ct, Monroe County 1946]). Accordingly, movant may request an examination pursuant to SCPA 1404 and file objections. The Court's decision on this motion does not prevent petitioner from moving to dismiss any objections filed by movant on the ground of lack of standing should evidence establishing such be provided. This constitutes the decision of the Court. It is hereby

ORDERED that Rickardo O'Hara Smith's motion for standing to appear in this proceeding as a person adversely affected by the admission of a certain will to probate, permitting movant to request an examination pursuant to SCPA 1404, and permitting movant to file objections to probate is granted.

Dated and Entered: July 30, 2019

Hon. Stacy L. Pettit, Surrogate

Papers Considered:

Notice of Motion to Dismiss, dated June 20, 2019; and Affidavit of James G. Snyder, Esq., in Support of Motion, dated June 17, 2019, and exhibits A-C;

Affirmation in Opposition of Max Smelyansky, Esq., dated July 3, 2019, and exhibit A;

Affirmation in Reply of James G. Snyder, Esq., dated July 10, 2019, and exhibits A-C.

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