● New York Practice Guide: Probate and Estate Administra-tion §§ 8.01, 8.02.
● Bender’s Forms for the Civil Practice Form No. SCPA 1406:1 (Official Form P-3, Affidavit of Attesting).
● In re Lipin, N.Y.L.J., Mar. 29, 1982, p. 13 (Sur. Ct. New York County)
[2] Dispensing with Examination Where Attesting Witness Is Dead, Absent from State or Incompetent
If at least one witness has been examined, the court may dispense with the testimony of a second deceased or incompetent witness or a second witness who cannot, with due diligence, be located within the state and admit the Will to probate without additional proof. See SCPA § 1405(1).
If all of the attesting witnesses are dead, incompetent or absent from the state and their testimony has been dispensed with, the Will may be admitted to probate upon proof of both the testator’s handwriting and the handwriting of at least one of the witnesses and other facts necessary to prove the validity and due execution of the Will. See SCPA § 1405(4); see also Official Form P-9 (Affidavit Proving Handwriting).
The court will require proof of the unavailability of a witness by affidavit supported by a death certificate for each deceased witness. See Official Form P-8 (Application and Order for Dispens-ing with Testimony of AttestDispens-ing Witness).
If a witness is absent from the state but the witness’ testimony can be obtained by reasonable diligence, a party may demand that the witness’ testimony be taken by commission. See SCPA
§ 1405(2).
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administra-tion § 8.07.
● Bender’s Forms for the Civil Practice Form No. SCPA 106:43 (Official Form P-8, Application to Dispense with
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§ 3.11[2]
Testimony of Attesting Witness), Form No. SCPA 106:44 (Official Form P-9, Affidavit Proving Handwriting).
[3] Ignoring Testimony of Hostile or Forgetful Attesting Witness
If an attesting witness has forgotten the execution of the Will or testifies against due execution and at least one other witness has been examined, the court may admit the Will to probate upon the testimony of just the one other witness and other facts sufficient to prove the validity and due execution of the Will. See SCPA
§ 1405(3). If both witnesses cannot remember the execution or testify against the Will, the court can admit the Will to probate provided there is sufficient other proof that the Will is valid. See In re Collins, 60 N.Y.2d 466, 470 N.Y.S.2d 338, 458 N.E.2d 797 (1983) (holding that a Will may be admitted to probate despite the inability of attesting witnesses to clearly recall circumstances surrounding its execution).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 41.09, 41.10, 112.02, 115.07.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1404.01, 1404.02, 1405.01, 1405.02, 1405.03, 1405.04, 1406.01, 1406.02, 1406.03, 1406.04, 1406.05.
● New York Practice Guide: Probate and Estate Administra-tion § 8.07.
● Bender’s Forms for the Civil Practice Form No. SCPA 1404:1, Form No. SCPA 1405:1, Form No. SCPA 1405:5, Form No. SCPA 1406:2.
§ 3.12 Examining Interested Parties [1] Determining Who May Be Examined
Any party to the proceeding may examine:
1. Any or all of the attesting witnesses, either before or after the filing of objections;
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2. The person who prepared the Will either before or after the filing of objections; and
3. The nominated executors and the proponents of the Will either before the filing of objections if the Will contains an in terrorem clause or after the filing of objections, whether or not the Will contains an in terrorem clause.
See SCPA § 1404(4).
If more than one person was involved in the drafting, the person who met with the testator and took drafting instructions is consid-ered to be the person who prepared the Will. See SCPA § 1404(6).
Nonparty witnesses, such as medical professionals who attended to the decedent, may also be examined pursuant to CPLR 3101(a) after objections have been filed.
[2] Determining Who Is Entitled to Examine Witnesses Although SCPA § 1404(4) allows any party to the proceeding to examine a witness, generally the courts will limit the right to examine witnesses to those parties who are entitled to file objec-tions under SCPA § 1410. See In re Peckolick, 167 Misc. 2d 597, 639 N.Y.S.2d 675 (Sur. Ct. New York County 1996) (refusing to allow executor named in a prior will to examine witnesses because such party had no basis for filing objections).
[3] Determining When Witnesses May Be Reexamined No person who has been examined under SCPA § 1404 may be examined again in the same proceeding under any other provi-sion of law except by direction of the court. See SCPA § 1404(4).
In deciding whether to permit a second examination of a witness, the court will look at the following factors:
1. The inconvenience of the exam;
2. The location of the witness;
3. The amount of time since the previous exam; and
4. The prejudice to the objectants that would result from denial.
See In re Cesario, N.Y.L.J., Oct. 19, 1993, p. 32 (Sur. Ct.
Westchester County) (enumerating factors considered by court in
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§ 3.12[2]
determining whether to allow second examination of witnesses);
In re Seskin, N.Y.L.J., Dec. 23, 1987, p. 14 (Sur. Ct. Nassau County) (allowing second examination of witnesses after consider-ing convenience, time, location and prejudice).
[4] Keeping Examinations Within Limited Scope
The scope of examinations under SCPA § 1404 is limited to those issues that are relevant to the validity and due execution of the Will. See SCPA § 1404(4). Issues regarding construction are not proper subjects for a SCPA § 1404 examination.
Absent the showing of special circumstances, the subject matter of examinations in a contested probate proceeding is limited to circumstances occurring within the three years prior to the date of execution of the Will and two years after. See 22 NYCRR
§ 207.27.
Prior to the filing of objections, all rights with respect to document discovery and, after objections are filed, all discovery rights granted under CPLR Article 31, are afforded the party conducting the examination. See SCPA § 1404(4); 22 NYCRR
§ 207.27; see also CPLR Article 31.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 112.02, 115.07.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1404.01 et seq., 1408.01, 1408.02, 1408.03.
● Weinstein, Korn & Miller, New York Civil Practice: CPLR Ch. 3101.
● New York Practice Guide: Probate and Estate Administra-tion § 8.03.
● LexisNexis AnswerGuide New York Civil Litigation § 6.01 et seq. (discovery).
[5] Determining Time and Place of Examinations All examinations conducted pursuant to SCPA § 1404:
1. Must be conducted on reasonable notice to all attorneys, guardians ad litem, and parties entitled to notice under SCPA § 302(3);
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2. Cannot be conducted until jurisdiction has been obtained over all necessary parties to the proceeding; and
3. Must be held at the courthouse, unless otherwise directed by the court.
See 22 NYCRR § 207.28.
In an uncontested probate proceeding, if a witness is outside the jurisdiction of the court and cannot conveniently come to the court, the court may direct that the witness be examined in the Surrogate’s Court of another county, in an appropriate court of another state or county, or before a commissioner designated by the court. See SCPA § 507(2); 22 NYCRR § 207.22(a).
[6] Recording Testimony
In all cases, proof must be reduced to writing and the testimony of the witnesses recorded either by the probate clerk or, if a party other than the court is conducting the examinations, by a stenogra-pher. See SCPA § 1404(4).
[7] Determining Responsibility for Examination Costs If examinations are conducted before objections are filed, the costs of the initial examination of the first two attesting witnesses within the state or the examination of the one witness outside the state who resides closest to the county in which the proceedings are pending are to be paid by the decedent’s estate. The same is true of the costs of the stenographer, one copy of the transcripts for the court and any guardian ad litem. All other costs, including costs of examinations conducted after objections are filed and costs of document discovery, are governed by CPLR Article 31. See SCPA § 1404(5).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 112.02, 115.06, 115.07.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1404.01, 1404.11.
● Weinstein, Korn & Miller, New York Civil Practice: CPLR
¶ 3101.01.
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§ 3.12[6]
● New York Practice Guide: Probate and Estate Administra-tion § 8.03.
● LexisNexis AnswerGuide New York Civil Litigation § 6.01 et seq. (discovery).
§ 3.13 Proving Lost or Destroyed Will
In order to admit a lost will to probate the proponent must prove the following:
1. The Will was not revoked;
2. The Will was duly executed; and
3. The contents of the Will by providing a copy of the executed Will, a draft of the Will, or testimony of at least two credible witnesses regarding the contents.
See SCPA § 1407.
A witness’ testimony as to the provisions of the Will must be based upon the witness’ own reading of the Will and cannot be based upon statements made by the decedent to the witness regarding the contents of the Will. A decedent’s declaration as to the contents of the Will are inadmissible in New York. See In re Yanover, 16 Misc. 2d 128, 182 N.Y.S.2d 961 (Sur. Ct. Nassau County 1959) (refusing to admit lost Will based on decedent’s declarations of contents).
Strategic Point: Retention of the original Will by the attorney-draftsman will usually overcome the presumption that a lost Will was revoked by the testator.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.12, 41.13.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1407.01 et seq.
● New York Practice Guide: Probate and Estate Administra-tion § 8.08.
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§ 3.14 Proving Nuncupative or Holographic Will
In addition to the usual proof required that the testator was competent to make a Will and under no restraint, the following additional proofs must be offered in order to probate a nuncupative Will or a holographic Will:
1. Proof of the eligibility of the testator to make a nuncupative or holographic Will and the non-expiration of such Will.
EPTL § 3-2.2 requires that the testator be either a member of the armed forces, accompanying an armed force during a time of armed conflict or a mariner at sea. See SCPA
§ 1404(3).
2. If the Will is nuncupative, proof by at least two witnesses of both the execution and provisions of the Will. See SCPA
§ 1404(3).
3. If the Will is holographic, proof that the decedent wrote the Will with testamentary intent and proof of the testator’s handwriting. See SCPA § 1404(3).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.10, 41.13, 42.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1404.06.
● New York Practice Guide: Probate and Estate Administra-tion § 8.06.
● Bender’s Forms for the Civil Practice Form No. SCPA 1405:5 (affidavit as to handwriting).
● 5th Rep., Temp Comm’n on Estates, Leg. Doc. (1966) No.
19, App. L-8, pp. 371–97.
§ 3.15 Filing Objections
[1] Determining Who May File Objections
In order to have standing to file objections to the probate of a Will or of any part thereof:
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§ 3.14
1. A party must have a pecuniary interest in the real or personal property of the decedent;
2. Such interest must be one that would be adversely affected by the admission of the Will to probate; and
3. Unless good cause is shown, such interest cannot be a financial interest solely in fiduciary commissions.
See SCPA § 1410.
Exception: Even if a legatee has no standing to object to a Will due to a lack of pecuniary interest, he or she can nevertheless object to the qualification of the nominated fiduciary. See In re Judson, N.Y.L.J., Nov. 1, 1995, p. 32 (Sur. Ct. New York County) (allowing parties to object to qualification of preliminary executor despite lack of standing to file objections to probate).
An in terrorem clause cannot deprive a person of standing to contest the probate of a Will. See In re Lippner, 104 Misc. 2d 819, 429 N.Y.S.2d 839 (Sur. Ct. Kings County 1980) (neither a “no contest” nor a “forfeiture” clause may under any circumstances deny to a distributee “standing” to contest probate of the Will under SCPA § 1410). However, if unsuccessful, the contestant may forfeit his or her interest in the estate.
[2] Considering Form and Timing of Objections
Objections to the probate of a Will must be in writing and filed on or before the return date or on a subsequent day as directed by the court.
If a request is made to examine the witnesses pursuant to SCPA
§ 1404, objections must be filed within 10 days after the comple-tion of such examinacomple-tion or such later date as may be agreed to by the parties or fixed by the court. See SCPA § 1410 and 22 NYCRR § 207.26.
Unless the court makes a special order, late objections may be accepted only if accompanied by a stipulation of all parties to
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extend the time to file objections. See 22 NYCRR § 207.36. In such a case, the court will examine the following factors:
1. The reason for the delay;
2. The extent of the delay;
3. The deliberateness of the default;
4. The prejudice that might result from the delay; and 5. The merits of the objection.
See Anolick v. Travelers Ins. County, 63 A.D.2d 665, 404 N.Y.S.2d 689 (2d Dep’t 1978) (vacating default after reviewing all relevant factors); In re Harrison, N.Y.L.J., May 20, 2002, p. 22 (Sur. Ct.
Bronx County) (allowing objections to be filed).
[3] Including Proper Allegations Within Objections
Proper objections to the probate of a Will include objections regarding the genuineness, validity, and due execution of the Will.
Any questions regarding the meaning of the Will or seeking a correction of the Will cannot be determined until after the Will is admitted to probate. See In re Devine, 41 Misc. 2d 211, 244 N.Y.S.2d 934 (Sur. Ct. New York County 1963) (holding that the meaning of a Will and its interpretation and correction must wait until after Will is admitted to probate). Common objections include allegations of improper execution, fraud, duress, undue influence, lack of testamentary capacity, forgery and revocation.
The following allegations are improper in a proceeding to probate a Will because they do not concern the genuineness, validity and due execution of the Will:
1. That a divorce obtained by the decedent was invalid (see In re Dennis, 206 Misc. 593, 133 N.Y.S.2d 455 (Sur. Ct.
Suffolk County 1954));
2. That the Will does not dispose of the decedent’s property in a manner consistent with a valid and binding agreement entered into by the decedent (see In re Mirsky, 81 Misc.
2d 9, 365 N.Y.S.2d 122 (Sur. Ct. New York County 1975));
3. That the Will would be invalid if construed in a certain way (see In re Devine, 41 Misc. 2d 211, 244 N.Y.S.2d 934 (Sur.
Ct. New York County 1963)); and
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§ 3.15[3]
4. That legacies are prohibited by statute (see In re Felter, 32 Misc. 2d 985, 224 N.Y.S.2d 966 (Sur. Ct. Kings County 1962)).
Objections should:
1. Include a verified allegation of how the objectant’s interest is adversely affected; and
2. Describe the allegations in sufficient detail to give the court and other parties notice of the objections asserted.
See SCPA §§ 103(39) and 302(2).
Strategic Point: Objections need not specifically deny the allegations of the probate petition. Rather, the objections may affirmatively allege why probate should be denied, such as to lack of capacity, undue influence, or improper execution of the Will. See In re Dixon, 7 Misc. 2d 812, 160 N.Y.S.2d 177 (Sur. Ct. Westchester County), aff’d, 2 A.D.2d 987, 158 N.Y.S.2d 770 (2d Dep’t 1956).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 42.01–42.09.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1410.01 et seq.
● New York Practice Guide: Probate and Estate Administra-tion § 11.01.
§ 3.16 Giving Notice and Serving Citation Upon Filing of Objections
[1] Determining Who Must Receive Notice of Objections and Citation
Whenever objections are filed, the party filing objections should furnish a copy of the objections to each party who appeared in the matter.
Within 30 days after the filing of objections, the proponent of the Will must submit a citation to the court which must be served
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upon each party named in the Will whose interests would be affected by the outcome of the proceeding and who has not appeared in the proceeding or waived service of citation. If the proponent fails to submit the citation to the court, it may be submitted by any other interested party. See SCPA § 1411(2) and (3) and 22 NYCRR § 207.26.
Any person who has waived service of citation or has been served may appear personally on the return date or by filing a notice of appearance. Any party failing to appear will not be entitled to further notice and any determinations or settlements will be binding on all persons who have failed to appear. See SCPA § 1411(5) and (6).
[2] Including Required Contents in Citation
The citation must recite:
1. That objections have been filed;
2. That such objections may be determined at a trial, hearing or conference on a specified return date; and
3. The consequences of failing to appear.
See SCPA § 1411(1).
[3] Serving Citation
The citation must be served in accordance with the rules of SCPA
§§ 307 and 308 except that service may be made by mail upon any person whether a resident or nonresident of New York. See SCPA § 1411(4).
Proof of service by affidavit must be filed with the court at least two days before the return date. See SCPA § 1411(4).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 42.03.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1411.01.
● Weinstein, Korn & Miller, New York Civil Practice: CPLR Ch. 3101.
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§ 3.16[2]
● New York Practice Guide: Probate and Estate Administra-tion § 11.02.
● LexisNexis AnswerGuide New York Civil Litigation §§ 6.01 et seq. (discovery), 8.01 et seq.
● 22 NYCRR §§ 207.23, 207.27, 207.28, and CPLR Article 31 (regarding pretrial procedures including pretrial confer-ences, examination of witnesses, discovery, document pro-duction, bill of particulars, interrogatories, and letters rogatory).
§ 3.17 Obtaining Decree
[1] Meeting Prerequisites for Issuance of Decree
Before a Will may be admitted to probate, the court must first be satisfied with the genuineness and validity of the Will. See SCPA § 1408(1). Even if all parties consent to probate, the court must make its own evaluation regarding the validity of the Will.
See In re Wharton, 114 Misc. 2d 1017, 453 N.Y.S.2d 308 (Sur.
Ct. Westchester County 1982) (duty of Surrogate to be satisfied that instrument offered for probate was duly executed).
The court must issue a decree admitting the Will to probate when it is satisfied that:
1. The Will is genuine;
2. The Will was validly executed pursuant to the provisions of EPTL § 3-2.1 (in the case of a holographic Will, EPTL
§ 3-2.2);
3. The testator had the requisite capacity to make a Will at the time of its execution; and
4. The testator was not under any undue restraint.
See SCPA § 1408(2).
Partial probate of a Will is permissible. See In re Atlas, 101 Misc.
2d 677, 421 N.Y.S.2d 815 (Sur. Ct. Nassau County 1979).
[2] Including Required Contents in Decree
In the normal case where there is no probate contest, the decree should include the following:
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1. A statement that the Will has been filed with a petition for its probate;
2. A statement confirming that jurisdiction has been obtained over all interested parties by citation, appearance, or waiver;
3. A statement that a guardian ad litem has been appointed, if appropriate, and has filed his or her report without objection;
4. A statement that the Surrogate is satisfied that the Will is genuine and was duly executed and that the testator was competent to make a Will and not under any restraint;
5. A direction for the issuance of letters testamentary to the executors named in the Will upon their qualification and, if relevant, letters of trusteeship; and
6. A revocation of any prior letters of administration, prelimi-nary letters testamentary, or letters of administration.
SCPA § 1413.
If there was a Will contest, the decree should also include recitals of the filing of objections, the trial and the verdict or decision, or, if there was a settlement, the terms of the settlement. The decree may also include provisions for the payment of costs.
The court may strike from the Will non-dispositive and libelous or objectionable language. In such a case, the Will is preserved intact and under seal and the amended text is set forth in the decree.
See In re Croker, 201 Misc. 264, 105 N.Y.S.2d 190 (Sur. Ct.
Suffolk County 1951).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 42.05, 42.06, 42.07, 43.01, 43.02, 43.03, 43.04 (due execution of a Will, the level of capacity required to execute a Will, fraud and undue influence).
● Cox, Arenson & Medina, New York Civil Practice: SCPA
● Cox, Arenson & Medina, New York Civil Practice: SCPA