Opinion
File No. 2012-743/J
02-28-2020
In the MATTER OF the Application of Eva G. NIECZAJ, as Administratrix C.T.A of the Estate of Harry W. Guy, deceased
David M. Kaufman, Esq., Weitz & Luxenberg, P.C., Attorney for Petitioner, 700 Broadway, New York, New York 10003
David M. Kaufman, Esq., Weitz & Luxenberg, P.C., Attorney for Petitioner, 700 Broadway, New York, New York 10003
The following papers were read and considered in this proceeding to vacate a default and obtain an extension of time to exercise Petitioner's right of election:
1. Verified Petition of Eva G. Nieczaj, verified on September 17, 2019 and filed on December 11, 2019; Affidavit of Eva G. Nieczaj sworn to on September 17, 2019 and filed on September 23, 2019.
2. All other filings under File No. 2012-743, of which the Court takes judicial notice.
BACKGROUND
The will of Decedent Harry W. Guy was probated and Letters of Administration C.T.A. were issued to Petitioner Eva G. Nieczaj by Decree dated September 17, 2018.
Petitioner filed an untimely Notice of Election by Surviving Spouse on September 23, 2019.
By the instant Verified Petition, verified on September 17, 2019 and filed on December 11, 2019, Petitioner seeks an order vacating the default as to her untimely Notice of Election and extending her time to exercise her spousal right of election.
The Verified Petition is unopposed.
ANALYSIS
EPTL § 5.1-1-A(d), "Procedure for exercise of right of election," provides as follows:
(1) An election under this section must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent's death, except as otherwise provided in subparagraph 2 of this paragraph. Written notice of such election shall be served upon any personal representative in the manner herein provided, or upon a person named as executor in a will on file in the surrogate's court in a case where such will has not yet been admitted to probate, and the original thereof shall be filed and recorded, with proof of service, in the surrogate's court in which such letters were issued within six months from the date of the issuance of letters but in no event later than two years from the date of decedent's death, except as otherwise provided in subparagraph 2 of this paragraph. Such notice may be served by mailing a copy thereof, addressed to any personal representative, or to the nominated executor, as the case may be, at the place of residence stated in the designation required by section 708 of the surrogate's court procedure act, to the domicile address of such nominated executor, or in such other manner as the surrogate may direct.
(2) The time to make such election may be extended before expiration by an order of the surrogate's court from which such letters issued for a further period not exceeding six months upon any one application. If the spouse defaults in filing such election within the time provided in subparagraph (1) of this paragraph, the surrogate's court may relieve the spouse from such default and authorize the making of an election within the period fixed by the order, provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters, and two years have not elapsed since the decedent's date of death, in the case of initial application; except that the court may, in its discretion for good cause shown, extend the time to make such election beyond such period of two years. An application for relief from the default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such persons and in such manner as the surrogate may direct. A certified copy of such order shall be indexed and recorded in the same manner as a notice of pendency of an action in the office of the clerk of each county in which real property of the decedent is situated.
See EPTL § 5.1-1-A(d)(1), (2).
Accordingly, a court may extend the time to make an election and relieve a party of their default provided that, among other things, no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters. See In re Estate of Hornby , 139 AD3d 1153, 1154 (3d Dept. 2016). Although EPTL § 5—1.1—A (d)(2) provides language allowing a court to relieve a spouse of his or her failure to meet a separate condition precedent (i.e., two years have not elapsed since the decedent's date of death) it provides no similar language permitting a court to excuse the failure to satisfy the condition precedent related to the timeliness of seeking election (i.e., within twelve months after the issuance of letters). See In re Estate of Hornby , 139 AD3d at 1154 (holding that the Surrogate's Court has no power to relieve a default pursuant to EPTL § 5-1.1-A[d] when the application is filed more than twelve months after the issuance of letters).
Here, the Petitioner argues that her "Description of Legacy, Devise or Other Interest" contained in her June 23, 2016 Petition for Probate., in which she merely describes her interest in the estate as "Spousal Right of Election," is a proper substitute for a notice of election requirements of EPTL § 5-1.1-A, especially since she was both the surviving spouse and the administrator at the same time. The Petitioner, however, fails to cite any legal authority to support her position.
It is true that some cases state that improper service of a notice of election may be deemed sufficient when there has been "substantial compliance" with EPTL § 5-1.1-A. See e.g., In re Estate of Colin , 23 AD3d 824, 825 (3d Dept. 2005). However, in such cases, an actual notice of election had been prepared and filed — not a substitute or alternative form of notice of election. See e.g., In re Prescott's Will, 194 Misc 827, 830 (Sur. Ct., Herkimer Co., 1949) (finding substantial compliance under the prior version of the law where executor had actual notice of the notice of election, because he, himself, was the surviving spouse and had prepared and filed a notice of election himself within six months from the issuance of letters testamentary, although he had never served the notice of election as required by the statute).
Here, Petitioner offers her probate petition as a substitute for the statutory notice of election; however, it has been held that a petition is not a valid substitute for a statutory notice of election. See, Matter of Alfieri , 203 AD2d 562, 563 (2d Dept. 1994) (holding that the Surrogate's Court properly determined that the petition could not be deemed a notice of election); see also , In re Thompson , No. 2016-4509/E, 2019 WL 6037848, at *1 (Sur. Ct., New York Co., 2019) (holding that petitioner's claim that he had notified respondent of his intent to file a notice of election in other court filings was not an acceptable substitute for the required statutory notice of election); see also , Collins v. Collins , 12 AD2d 307, 309 (1st Dept. 1961) (holding that a letter between litigating attorneys should not be construed to have the effect of a notice of election).
If the Court were to allow such deviation from the EPTL, it would amount to impermissible "judicial legislation" in changing or waiving the express requirements of the EPTL. See e.g.,
At most, the Petitioner has demonstrated that she may have had the intent to assert her right of election against the Will at the time she filed her probate petition; however, even if an intention is "unequivocally evinced," it is not enough for a surviving spouse to show a mere intention to elect against the will lieu of filing a written notice of election against the will. See, Collins v. Collins , 12 AD2d 307, 309 (1st Dept. 1961).
Even if the Court were to accept Petitioner's petition as a substitute form of notice of election, there is no "notice of election" contained in it. The petition merely describes the Petitioner's interest in the proceeding as "Spousal Right of Election" — not whether she is exercising it, or, for that matter, waiving it. Furthermore, Petitioner's petition was filed before the letters were issued, while EPTL § 5-1.1-A requires that any notice of election must necessarily be filed after letters are issued. See, EPTL § 5.1-1-A(d)(1).
Ultimately, however, Petitioner's petition to vacate the default and extend the time to exercise her right of election must be denied because the petition was filed [on December 11, 2019] more than twelve months after the letters of administration were issued [on September 17, 2018], and, as a result, the Court is powerless to vacate the default at this point in time. See In re Estate of Hornby , 139 AD3d 1153, 1154 (3d Dept. 2016) ; see also , In re Brookes' Will , 9 AD2d 927, 928 (2d Dept. 1959), aff'd, 9 NY2d 840 (1961) (holding that the Surrogate had no power to relieve respondent of his default in filing and recording his notice of election more than twelve months after the issuance of letters nunc pro tunc ).
Additionally, while Petitioner argues that the description in her petition should be deemed a substitute for the statutory notice of election, the Petitioner has failed to show or offer any reasonable cause for the default on this application to the court. See EPTL § 5.1-1-A(d)(1), (2); see also , In re Cavallo , 98 AD3d 1115, 1116 (2d Dept. 2012) ("Even assuming that the Surrogate's Court had the authority to grant the decedent's wife leave to serve and file a notice of election ... the decedent's wife, who was represented by counsel throughout the course of this litigation, and who clearly was aware during the two-year period following the decedent's death that she had a right of election, failed to show ‘reasonable cause’ for relief from her default and for an extension of time to elect"; reversing the Surrogate Court's grant of relief from default); In re Thompson , No. 2016-4509/E, 2019 WL 6037848, at *1 (Sur. Ct., New York Co., 2019) ; (court denied vacatur of default and extension of time to file a notice of election where petitioner failed to offer reasonable cause for having failed to timely file or demonstrate any wrongdoing or conduct that somehow prevented him from timely filing).
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED, that the Verified Petition herein is denied.
In re Bornstein's Estate , 199 Misc 1043, 1051 (Sur. Ct., Kings Co., 1950).