In the Matter of the Probate Proceeding, Will of Josephine Brucato, Deceased.
3496/07
SURROGATE'S COURT OF NEW YORK, KINGS COUNTY
24 Misc. 3d 1212A; 890 N.Y.S.2d 368; 2009 N.Y. Misc. LEXIS 1729; 2009 NY Slip Op 51433U; 242 N.Y.L.J. 12
June 17, 2009, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
OPINION BY: Diana A. Johnson 
Diana A. Johnson , J.
In this proceeding to probate a copy of a testamentary instrument as a lost will (SCPA 1407), petitioners move to withdraw their petition and have letters of administration issue instead.
The decedent died on October 26, 2000. The propounded instrument was executed on March 23, 1995. Under the instrument, the decedent left her estate to her two sisters, Jean Brucato and Antoinette Brucato, or the survivor. She named Jean Brucato as executor and Antoinette Brucato as successor. Jean Brucato predeceased the decedent without issue. As a result, the entire estate passed to Antoinette Brucato ("Antoinette").
In 2005, Antoinette petitioned for the appointment of a guardian of her property. The court, finding that Antoinette had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, Rosanna Lopez, a niece, and Gina Marie Reitano, Esq., as guardians of Antoinette's property. Matter of Brucato, [***2] Supreme Court, Kings County, October 19, 2005, Firetog J., Index No. 100243/05.
In May, 2007, Judge Firetog authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will (SCPA 1407). The affidavit of Ms. Lopez in support states that she located the copy among Josephine's important papers after her death. While Josephine must have had the original will, Josephine's house had been sold and the purchaser threw away all of Josephine's papers. The affirmation of Ms. Reitano states that after Josephine's death, her home was taken over by a former handyman of Antoinette, who threw away all of Josephine's papers.
The instrument was prepared by an attorney, who supervised its execution and was a subscribing witness. He has filed an affirmation of due execution. The second subscribing witness cannot be located. The petitioners now move to withdraw their probate petition ans ask that the Court issue letters of administration to them. They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness. The distributees [***3] have executed agreements waiving their intestate rights "so as to mirror the testamentary plan set forth in her Last Will & Testament dated March 23, 1995."
Discussion
Where there is an apparently valid testamentary instrument on file, the Court has the obligation to try to respect the testamentary wishes expressed therein, if this can be done. As one Surrogate has written,
If I could consider first and only the wishes of all of the parties directly interested herein, I would be inclined to accede to their wishes and deny probate of this instrument against which they have opposition and admit the prior instrument. The law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property. Matter of Moyer, 97 Misc 512, 516, 163 N.Y.S. 296, 17 Mills 536 (Sur Ct, Monroe County 1916).
The Court's obligation in this regard is a matter [***4] of public policy. In re Solomon's Estate, 145 NYS 528 (Sur Ct, NY County 1914). This is reflected in the authority reposed in the Surrogate's Court to ensure the validity of instruments offered for probate (see Crempa v Oakley, 9 Misc 2d 583, 170 N.Y.S.2d 669) and case law requiring the Surrogate to pass on the validity of testamentary instruments offered for probate. This duty is not relieved by the parties agreement to arbitrate the dispute (see Matter of Berger, 81 AD2d 584, 437 N.Y.S.2d 690 [2d Dept 1981]; Matter of Jacobovitz, 58 Misc 2d 330, 295 N.Y.S.2d 527 [Sur Ct, Nassau County 1968]) or consent to probate. See Matter of Westover, 145 Misc 2d 469, 546 N.Y.S.2d 937 (Sur Ct, Fulton County 1989).
Normally, it is the duty of the nominated executor to "take diligent and active steps to procure its probate and to protect [the will] from attack from any source." Matter of Reimers, 261 NY 337, 339, 185 N.E. 403 (1933); see also Matter of Keating, 55 Misc 2d 948, 286 N.Y.S.2d 1006 (Sur Ct, Nassau County 1968); Matter of Payne, 160 Misc 224, 290 N.Y.S. 407 (Sur Ct, NY County 1936). Where the nominated fiduciaries have died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument. SCPA 1402. 1
FOOTNOTES
1 SCPA 1402 has [***5] not been amended to reflect the fact that committees and conservators have been replaced by guardians under Article 81 of the Mental Hygiene Law. Nonetheless, a guardian of a legatee has standing to petition to probate the instrument. 3 Warren's Heaton on Surrogate's Court § 41.02(4)(a).
However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Thus, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Matter of Chapin, 167 Misc 388, 3 N.Y.S.2d 932 (Sur Ct, Monroe County 1938); Matter of Friedman, 164 Misc 440, 299 N.Y.S. 103 (Sur Ct, Bronx County 1937). Nor will probate be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Matter of Cameron, 47 AD 120, 62 N.Y.S. 187 (3d Dept 1900), affd on opinion below 166 NY 610, 59 N.E. 1120 (1901); Matter of Von Ripper, 95 Misc 2d 952, 956, 408 N.Y.S.2d 686 (Sur Ct, NY County 1978); Matter of Hammel, 33 Misc 2d 335, 223 N.Y.S.2d 647 (Sur Ct, Suffolk County 1962); Matter of Verderber, 237 N.Y.L.J. 73, Apr. 17, 2007, at 32, col 5 (Sur Ct, Queens County).
Even an otherwise valid instrument need not be offered for probate where its proof [***6] is doubtful or would entail undue time and expense, especially where the results would be similar to intestacy. See Matter of Billet, 187 AD 309, 175 N.Y.S. 482 (2d Dept 1919); Matter of Von Ripper, supra, Matter of Kaufman, NYLJ, May 3, 2001, at 22, col 3 (Sur Ct, NY County); Matter of Logan, NYLJ, Mar. 12, 201, at 33, col 1 (Sur Ct, Kings County).
Finally, even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration where there has been unreasonable delay in probate (SCPA 1001[9], but see Matter of Lenahan, NYLJ, July 15, 1999, at 32, col 1 [Sur Ct, Queens County]), where all the legatees are adults and either consent, default or appear but do not file objections. "Where all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission." Matter of Sielcken's, 162 Misc 54, 68-69, 293 N.Y.S. 721 (Sur Ct, NY County 1937); see also Matter of Hammel, supra; In re Millar's Will, 156 NYS2d 944 (Sur Ct, Nassau County 1956).
In the instant case, however, none of these exceptions to excuse probate are presented. The sole [***7] beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties.
While the failure to locate the original creates a presumption of revocation by the decedent (SCPA 1407), this presumption may be rebutted where, as here, there is a natural explanation for the failure to locate the original and the copy is found among the decedent's important papers. See Matter of Fox, 9 NY2d 400, 174 N.E.2d 499, 214 N.Y.S.2d 405 (1961); Matt of Bly, 281 AD 769, 118 N.Y.S.2d 340 (2d Dept 1953); Matter of Levinsohn, 5 Misc 2d 605, 160 N.Y.S.2d 479 (Sur Ct, Kings County 1957).
The drafter is an attorney who supervised the execution of the instrument and is a subscribing witness, giving rise to a presumption of due execution. The inability to locate a subscribing witness will not bar probate, since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success. SCPA 1405.
Finally, all of the distributees agree that the decedent's testamentary wishes should be adhered to. Under these circumstances, the Court cannot agree to the abandonment of the probate proceeding. The Court cannot, [***8] however, force the petitioners to pursue probate if they chose not to do so. 3 Warren's Heaton on Surrogate's Court § 41.02(1)(c)(6th ed rev 1993); see Matter of Sielcken, supra. Accordingly, if the petitioners are unwilling to proceed with the probate proceeding, the Court authorizes the Public Administrator of Kings County to do so. SCPA 1402; see In re Millar's Will, supra.
Based on the above, the petitioners' motion to withdraw the probate petition is denied. The petitioners are directed to complete their papers in support of the petition, including an affidavit showing diligent search for the second subscribing witness, by September 3, 2009. If they fail to do so, the Public Administrator shall be directed to file a petition to probate said instrument in their place.
The Clerk of the Court is directed to mail a copy of this decision and order to all parties who have appeared in this proceeding and the distributees, at the addresses shown in the petition.
This constitutes the decision and order of the Court.
/s/
Hon. Diana A. Johnson 
Surrogate
Dated: June 17, 2009