Opinion
157/2005.
Decided May 8, 2006.
Laurino Laurino, Attys for Dimitrios C. Fotopoulos.
Diktas Schandler Gillen, Attys for Irene Fotopoulos.
Kantrowitz, Goldhamer Graifman, P.C, Attys for Nicholas Kallivokas.
In this contested probate proceeding, the objectant, Irene Fotopoulos, has moved by order to show cause for an order of this court requiring an additional amendment of the second amended petition for probate, filed February 6, 2006, and requiring that citations issue to Dion Fotopoulos, Leo Fotopoulos, and Dimitrios H. Fotopoulos, three of decedent's sons. Objectant maintains that jurisdiction is not complete in this proceeding. She argues that the three above-named individuals are adversely affected under SCPA § 1403 by the probate of the propounded instrument as a result of the filing of a prior will, dated February 2, 1988, of decedent. Objectant also argues that the supplemental citation issued under the second amended petition "failed to satisfy minimal notice requirements of procedural due process" because it failed to specifically advise Vera Alexandria Fotopoulos, Sophia Biraglia, John Denning and Dennis Kallivokas that they "may be adversely affected" by the propounded will. Furthermore, she contends that the citation should state that a copy of the prior will is attached. Finally, objectant argues that it is also a jurisdictional defect that the preliminary executor, the petitioner in this probate matter, "failed to disclose his confidential attorney-client relationship" with the decedent. The preliminary executor opposes the motion.
Objectant's argument that Dion, Leo and Dimitrios Fotopoulos must be now be cited as a result of the filing of the 1988 will is completely without merit. These individuals appeared in this proceeding, and jurisdiction was completed over them, by the filing of waivers and consents. The waivers and consents which they executed were in complete conformity with SCPA § 401(4), and objectant has not raised any viable issue as to the validity of the waivers owing to fraud, overreaching or other misconduct. Thus, absent a showing that the waivers were procured by fraud or similar misconduct, they are valid to confer jurisdiction on these three persons. See Estate of Voza, 9/25/2002 NYLJ 23, Col. 6 (Surrogate's Court Nassau County, 2002); Matter of Frutiger, 29 NY2d 143 (1971).
Moreover, objectant's argument that these three individuals may have interests adversely affected under the propounded will as a result of the filing of the 1988 will is pure speculation. A comparison of both documents shows that certain properties owned by the decedent from which interests were devised to these three sons in the earlier will, were not mentioned in the 1995 will. An examination of the documents on file with the court demonstrates that some of these properties, or decedent's interests in the properties, were sold before the 1995 will was created, and others were sold thereafter. If these properties are not part of the estate, then it is difficult to see how the three sons could be adversely affected by probate of the 1995 will. In any event, the executed waivers and consents appear in all respects valid, and the court finds that jurisdiction over these three individuals is complete.
Objectant further claims that the supplemental citation issued to four additional parties, Vera Alexandria Fotopoulos, Sophia Biraglia, John Denning and Dennis Kallivokas, is jurisdictionally defective for failure to contain a statement specifically advising them that their interests under the 1988 will may be adversely affected by the probate of the 1995 will, and that a copy of the 1988 will is annexed to the citation. First, the court notes that the affidavits of service of the supplemental citation on these four individuals all state that each was served with a copy of both wills. Second, objectant has failed to demonstrate that a statement specifically advising a party that his or her interests may be adversely affected by the probate of a will is required by any substantive or procedural law or by the Uniform Rules of the Surrogate's Courts. The supplemental citation served in this case is, on the other hand, in complete conformity with SCPA § 306.
To the extent that objectant appears to attempt to graft additional requirements onto the statute, the court declines to impose such requirements. The single case cited by objectant to support this claim, Matter of Rothberg, 148 Misc 2d 703 (Surrogate's Court Bronx County, 1990), is factually distinguishable from the present one. In that case the court fashioned a rule, which notably applies only in that court, concerning the type of notice required when any attorney-drafter-fiduciary secures waivers from distributees and legatees who may be adversely affected by a bequest to that attorney. In the present case the attorney-fiduciary is not the drafter of the will.
Additionally objectant attempts to try to enlarge the parameters of Rule 207.16(e)(3) of the Uniform Rules for Surrogate's Court [ 22 NYCRR 207.16 (e)(3)] which requires a statement of disclosure from an attorney who is the sole fiduciary of an estate, who personally, or by his or her law firm, will also serve as counsel for the estate, and, if applicable that the attorney was the drafter of the will. Objectant suggests that there is a requirement that any attorney who is the named executor, and who is also a beneficiary under a will, must advise each party of any fact which might conceivably adversely affect that party's interests. The court is not aware of any such requirement, and objectant has not presented any authority to support this argument. In the instant case the proponent was not the drafter of the will, and he is the decedent's brother. Objectant has failed to demonstrate that a fiduciary who is a beneficiary, and who is also the natural object of the decedent's bounty, is required to give notice beyond what is required by statute and by court rules.
In sum, the court finds that it has acquired jurisdiction over all necessary parties to this proceeding. Accordingly, the objectant's motion is denied in its entirety.
This decision constitutes the order of the court.