ESTATE OF TONY SHANOK, a/k/a TESSIE SHANOK, Deceased

SURROGATE'S COURT OF NEW YORK, QUEENS COUNTY


October 12, 2010, Decided





The executor of decedent's estate moves to dismiss a proceeding brought by three legatees under an earlier will of the decedent to vacate the decree granting probate of a later will. The petitioners are the children of the decedent's predeceased husband. The earlier will in which petitioner were named beneficiaries is dated July 10, 1985. Subsequently the decedent executed will dated May 20, 1998 and October 8, 1998, neither of which include the petitioners. The instrument dated October 8, 1998, which directs distribution of the decedent's net estate to her two children, Stephen Forur and Lawrence Forur, was admitted to probate by this Court on December 14, 2009.

The petition seeks vacatur of the probate decree on the grounds inter alia that the petitioners were not given notice of the probate petition and that therefore the Court lacked in personam jurisdiction over all necessary parties to that proceeding.

In pertinent part, SCPA 1403 provides that in a probate proceeding process must issue to, inter alia the distributes of the decedent, and any person designated as beneficiary in any other will of the same testator filed is the surrogate's court of the county in which the propounded  [*2] will is filed whose rights are adversely affected by the instrument offered for probate. Since the petitioners are not distributees of the decedent and the 1985 instrument in which they are named as beneficiaries was not on file with the Court at the time of the probate proceeding, they were not necessary parties to the probate proceeding.

Accordingly, the Court finds that it had in personam jurisdiction over all necessary parties at the time of the probate decree.

Movant contends that petitioners lack standing to bring the instant proceeding. SCPA 1410 provides that any 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. The petitioners are named as beneficiaries in the 1985 instrument and are adversely affected by the instrument admitted to probate. Accordingly, the Court finds that petitioners have standing to bring this proceeding.

To vacate a decree admitting a will to probate, in addition to showing the status of the applicant, the following must be shown to the satisfaction of the Court: (1) facts sufficient to afford a substantial basis for contesting  [*3] the will, and (2) a reasonable probability of success. See, In re Estate of Wang, 5 AD3d 785, 773 N.Y.S.2d 578.

Petitioners seeks to contest the will on the grounds that the instrument is the product of undue influence practiced upon the decedent by the respondent Lawrence Forur. The allegation of undue influence is supported only by the affidavit of a trustee of a testamentary trust created by the decedent's predeceased husband for the benefit of the decedent which states that respondent "often" telephoned the trustee to discuss payments from the trust to the decedent. The Court finds that such acts are insufficient to establish a prima facie case of undue influence. Additionally the petitioners have failed to allege any facts which show that Lawrence had any direct involvement in the preparation or the execution of the will admitted to probate, or which show that he coerced the decedent to execute the instrument against her free will. See, Matter of Walther, 6 NY2d 49, 159 N.E.2d 665, 188 N.Y.S.2d 168.

Accordingly, the Court finds that petitioners have failed to show facts sufficient to afford a substantial basis for contesting the will and a reasonable probability of success.

The Court finds that movant's remaining grounds for dismissal  [*4] of this petition, to wit: laches, waiver and the statue of frauds, lack merit. Accordingly, those branches of the motion are denied.

The Court finds that petitioners contention that this motion must be denied as untimely lacks merit. A motion to dismiss must be made before service of a responsive pleading is required. CPLR 3211(e). Since the return date of the citation in this proceeding was adjourned on consent of the parties to October 7, 2010, the responsive pleading is not yet due.

The motion to dismiss the proceeding seeking vacatur of the decree granting probate is granted.

Settle Order.