Opinion
2015-286/A
02-25-2020
In the MATTER OF the Application of Wilheim C. WAIGHT to vacate the Decree issuing letters testamentary and probating the Last Will and Testament of William Menzies, Deceased.
Thomas F. O'Connell, Esq., O'Connell & Riley, Esqs., 144 East Central Avenue, Pearl River, New York 10965, Attorneys for Petitioner Gary M. Sobo, Esq., Sobo & Sobo, LLP, 1 Dolson Avenue, Middletown, New York 10940, Attorneys for Respondent
Thomas F. O'Connell, Esq., O'Connell & Riley, Esqs., 144 East Central Avenue, Pearl River, New York 10965, Attorneys for Petitioner
Gary M. Sobo, Esq., Sobo & Sobo, LLP, 1 Dolson Avenue, Middletown, New York 10940, Attorneys for Respondent
Timothy P. McElduff, Jr., S.
The following papers were read and considered on Petitioner's application to vacate the prior Decree of this Court entered on October 8, 2015, which admitted the Last Will and Testament of the Decedent to probate and issued Letters Testamentary to David Menzies:
1. Petitioner's Amended Verified Petition verified on August 13, 2016.
2. Respondent David Menzies' Verified Answer and Affirmative Defense verified on May 28, 2019.
3. All other documents filed with this Court under File Nos. 2015-286 and 2015-286/A, of which the Court takes judicial notice.
BACKGROUND
Respondent David Menzies originally sought to probate the Will of the Decedent and his appointment as Executor pursuant to a petition for probate filed on April 22, 2015. This Court issued a Citation returnable on June 10, 2015.
On May 27, 2015, the now-Petitioner Wilhelm Waight (the Respondent in the former probate proceeding) served a "Preliminary Notice for Discovery and Inspection" and "Notice to Take SCPA § 1404 Examinations" upon counsel for Respondent/Proponent David Menzies. (Amended Verified Petition, ¶4).
On June 1, 2015, Petitioner Wilhelm C. Waight (then the Respondent), through counsel, filed a Notice of Appearance. The Clerk of this Court rejected the Notice of Appearance due to deficiencies.
On June 10, 2015, the return date, counsel for Petitioner Wilhelm Waight, Thomas F. O'Connell, Esq., appeared in Court with a facsimile copy of an Authorization of Appearance. (Amended Verified Petition, ¶5). The Authorization of Appearance, which contained Wilhelm Waight's signature, was verified by him on August 3, 2015. The Authorization of Appearance stated the following:
Wilheim C. Waight [sic]... hereby authorizes Thomas F. O'Connell, Esq., attorney at law, of the City of Pearl River, New York, to appear for me in this proceeding, and such appearance by Thomas F. O'Connell, Esq. shall have the same effect as though I was personally served with said citation and duly appeared pursuant thereto.
At the June 10, 2015 return date appearance, the Court advised that the matter was adjourned to July 22, 2015 for purposes of serving a Supplemental Citation on Jannine Waight. (Amended Verified Petition, ¶5).
On June 20, 2015, the Petitioner states that the Clerk of the Court called Petitioner's counsel and told him that he need not appear on the adjourned date of July 22, 2015. The Clerk further informed Petitioner's counsel that he needed to file an original notarized Authorization of Appearance with the Court (replacing the facsimile copy), together with an Amended Notice of Appearance that clearly indicated which distributees Petitioner's counsel would continue to represent. (Amended Verified Petition, ¶6).
On August 17, 2015, the Court issued a Supplemental Citation to Jannine Waight returnable on September 30, 2015.
On August 20, 2015, Petitioner Wilhelm C. Waight, through counsel, filed an Amended Notice of Appearance (for Wilhelm C. Waight only) and the original Authorization of Appearance as previously requested by the Clerk at the June 10, 2015 appearance.
On September 30, 2015, distributee Jannine Waight failed to appear or object.
On October 8, 2015, the Court entered its Order granting probate of the Will of the Decedent and issuing Letters Testamentary to David Menzies.
On October 29, 2015, Petitioner's counsel contacted the Court Clerk's office and, on October 30, 2015, learned that the Will had recently been probated by Decree entered on October 8, 2015, that letters testamentary were issued and that there were no further appearances. (Amended Verified Petition, ¶7).
On September 7, 2016, the Petitioner filed the instant proceeding to vacate the Decree entered October 8, 2015, revoke the letters testamentary and grant leave for an opportunity to conduct SCPA § 1404 examinations and file objections to the Will. Petitioner argues that he received no notice of subsequent court dates following June 22, 2015. Petitioner alleges that the Will is invalid based upon lack of due execution, undue influence and/or lack of capacity because, "The decedent signed the purported instrument while in the hospital after the decedent had sustained serious head/brain injuries from which injuries, upon information and belief, he died shortly thereafter". (Amended Verified Petition, ¶¶7-9).
It took the Petitioner until October of 2017 to submit a citation in this proceeding.
It then took the Petitioner until September of 2018 to submit an affidavit requesting a proposed supplemental citation.
Petitioner's delays and his preparation of citations/supplemental citations could have been avoided if the Petitioner had commenced this proceeding to vacate the decree by Order to Show Cause.
On March 14, 2019, a second supplemental citation issued in this proceeding with a return date of May 1, 2019.
On May 1, 2019, Petitioner failed to appear. Respondent/Executor, however, did appear and objected to Petitioner's request to vacate the Decree. It further appeared that the Petitioner never served the Respondent/Executor with the Amended Verified Petition itself. As a result, the Court issued an Order Directing Service dated May 2, 2019, which directed service of the Amended Verified Petition, service of an answer, and scheduled a preliminary conference for June 26, 2019.
As a result of a conference held on June 26, 2019, this Court issued a Scheduling Order dated June 27, 2019 allowing for paper discovery and depositions on the Amended Verified Petition to vacate the Decree.
On December 4, 2019, this Court held a compliance conference, at which counsel for Petitioner and Respondent appeared, and at which the Court marked the proceeding as ready for a decision upon the petition and answer previously submitted.
ANALYSIS
The Surrogate's Court may vacate its own order or decree. See SCPA § 209(10) ; CPLR § 5015. An application to vacate a decree of probate is a matter of the Surrogate Court's discretion. Matter of Michalski's Will , 52 AD2d 663, 663 (3d Dept. 1976).
"It has been held that ‘[b]ecause vacatur disrupts the orderly process of administration and creates a continual aura of uncertainty and non-finality, a probate decree will be vacated only in extraordinary circumstances’." In re Senaud , No. 247727, 1997 WL 34845056 (Sur. Ct., Nassau Co., 1997).
In order to vacate a decree of probate made upon a default and obtain leave to file objections, the applicant must demonstrate (1) a reasonable excuse for the default/delay and the absence of willfulness and (2) a meritorious claim, which is not established by allegations in conclusory form, but instead, sets forth sufficient facts to afford a substantial basis for the contest and a reasonable probability of success. Matter of Will of Boyce , 158 AD2d 422, 423 (2d Dept. 1990) ; In re Martin's Estate , 14 Misc 2d 266, 267 (Sur. Ct., New York Co. 1944) ; In re Senaud , No. 247727, 1997 WL 34845056 (NY Sur., Nassau Co., 1997) ; see, e.g., Matter of Michalski's Will , 52 AD2d 663, 663 (3d Dept. 1976) (holding that a "conclusory allegation of disbelief in the voluntariness of decedent's action in executing a will hardly amounts to the required demonstration of a meritorious claim").
Objections to a petition for probate of a will must be filed on or before the return day of the process or on such subsequent day as directed by the court; provided however that if an examination is requested pursuant to SCPA § 1404, objections must be filed within 10 days after the completion of such examinations, or within such other time as is fixed by stipulation of the parties or by the court. See SCPA § 1410 ; SCPA § 302(1)(c).
Whenever the time to file objections in a proceeding has expired, objections shall not be accepted for filing unless accompanied by a stipulation of all parties to extend the time or unless ordered by the court. See 22 NYCRR 207.36.
An application to vacate a decree due to lack of jurisdiction is treated differently than an application to vacate a decree made upon the default of the party. In re Rank's Estate , 14 AD2d 644, 644 amended sub nom. Matter of Rank's Estate , 15 AD2d 609 (3d Dept. 1961). A party who was not originally made a party to the proceeding, but should have been, is entitled to be put in the same position as he/she would have been as if he/she had been served with a citation and appeared in court on the return date, thus, entitling him/her to file an objection. Id.
Here, while the Court and opposing counsel failed to give Petitioner proper notice of any proceedings after June 10, 2015, Petitioner failed to file objections or take affirmative action to preserve his rights. The fact that the Court required a supplemental citation to be served on Jannine Waight did not prevent Petitioner from filing objections. The Petitioner did not file any objections on the June 10, 2015 return date of the original citation (or at any time thereafter) and did not otherwise obtain a stipulation or court order adjourning the deadline for objections to be filed. The Petitioner did notice SCPA § 1404 examinations, but never held them or sought to enforce them. No stipulation or court order extending the time to file objections exists on this record. As a result, Petitioner Wilhelm Waight defaulted by failing to file objections prior to the issuance of the Decree granting probate.
Applying these facts to the "excuse" prong of the test, Petitioner offers no specific excuse for his failure to file objections. In fact, it took him over two and a half years to serve the instant petition to vacate the decree and have issue joined in this proceeding. However, due to the communication Petitioner's counsel received from the Court Clerk's office (concerning no further need to appear in court) and the apparent lack of communication or papers from the opposing counsel's office while jurisdiction over all parties was still incomplete (in response to Petitioner's notice of appearance and demand for papers), Petitioner's counsel could have reasonably believed that the objections were not due until further notice from the Court Clerk and/or opposing counsel. Under this particular record, the Court accepts the Petitioner's excuse for default as a reasonable excuse.
As to the meritorious objection prong of the test, the Petitioner alleges a lack of due execution, undue influence and/or lack of capacity because, "The decedent signed the purported instrument while in the hospital after the decedent had sustained serious head/brain injuries ..." However, Petitioner's proposed objection(s) is merely a sentence-long allegation in the Amended Verified Petition, made upon information and belief, in nothing more than conclusory form. He does not offer a proposed written objection or any evidence to demonstrate facts supporting any objections. Accordingly, Petitioner's proposed objection falls far short of presenting sufficient facts to afford a substantial basis for the will contest and a reasonable probability of success, as required to demonstrate a meritorious objection for the purposes of vacating a Decree of probate. Matter of Will of Boyce, In re Martin's Estate, In re Senaud, Matter of Michalski's Will, supra .
Despite the Petitioner's reasonable excuse for default, his petition/application to vacate the October 8, 2015 Decree of probate must be denied due to his failure to demonstrate the presence of a meritorious objection to the Will.
CONCLUSION
Based upon the foregoing, it is
ORDERED that Petitioner's Amended Verified Petition herein is denied and dismissed with prejudice.
This constitutes the Decision and Order of the Court.