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MATTER OF ABERMAN
In the Matter of the Estate of Benjamin Aberman, Deceased — Surrogate's Court, Albany County (Jan. 25, 1979)
Factual and Procedural Background
Petitioner, the decedent's former daughter-in-law and mother/guardian of Andrew and Steven Aberman (infants), moved to compel respondent, the surviving spouse, to produce decedent's purported last will and testament or disclose its whereabouts. Petitioner's verified petition (Nov. 22, 1978) asserted she could not locate a will and believed her children might be legatees under it. There is a separate action pending in Albany County Supreme Court in which petitioner, as mother and natural guardian of the infants, named respondent both personally and as fiduciary of the estate; court records show respondent has not been appointed fiduciary and no estate administration has been commenced. The respondent, in opposition, annexed a copy of the purported will, which indicates neither petitioner nor her children receive any legacy under it. The Surrogate denied petitioner's motion and awarded costs to respondent.
Legal Issues Presented
- Whether petitioner has standing to compel production of decedent's purported last will and testament or to require disclosure of its whereabouts.
- Whether SCPA 1402 (subd. 1, par. [c]) or SCPA 1403 (subd. 1, par. [c]) confers standing on petitioner in the circumstances presented.
Arguments of the Parties
Petitioner's Arguments
- Petitioner asserted she had attempted to locate a last will and had not found one.
- She alleged her children might be beneficiaries under the purported will and, acting for them, sought production and probate.
- Relied on SCPA 1402 (subd. 1, par. [c]) as authority to present a petition for probate because she is a party to related litigation.
Respondent's Arguments / Opposition
- Respondent opposed the motion and annexed a copy of the purported will to an affidavit in opposition; that document (and the Supreme Court record) showed petitioner and/or her attorney had knowledge of its contents.
- The copy demonstrates that neither petitioner nor her children receive any legacy under the purported will, contradicting petitioner's verified assertions.
- Respondent pointed out that respondent has not been appointed fiduciary and that the real property dispute in Supreme Court involves tenancy by the entirety, which passed to respondent by operation of law and is not part of the decedent's estate.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court first evaluated factual assertions and found them undermined by uncontradicted evidence: a copy of the purported will was annexed to the opposition and indicated petitioner (or her counsel) had extensive knowledge of its contents and that neither petitioner nor her children were beneficiaries. The court then addressed standing. It determined petitioner lacks standing individually and as representative of her children because neither she nor her children are distributees of the decedent (the children's father is living), and petitioner is a former daughter-in-law. The court rejected petitioner's reliance on SCPA 1402 (subd. 1, par. [c])—which permits a petition for probate by "any party to an action, brought or about to be brought, in which action the decedent, if living, would be a party"—observing that the separate Supreme Court action concerns possession of real property held as tenants by the entirety, title to which passed by operation of law to respondent and therefore would not be affected by probate of the will. Naming the estate as a party in that action does not establish the requisite cognizable, real interest in the estate to compel production. The court noted SCPA 1403 (subd. 1, par. [c])—which can confer standing upon certain parties named in an earlier will but omitted from a later instrument—was mentioned at oral argument, but that issue was not raised in the pleadings and thus not addressed.
Holding and Implications
Holding: The motion to compel production/disclosure of the purported last will and testament is denied, and costs are awarded to respondent.
Implications: The direct effect is denial of petitioner's requested relief and an award of costs to respondent. The opinion reflects a denial based on lack of standing and on the factual showing that petitioner had knowledge of the will's contents; the court did not establish a broader legal precedent beyond the decision's application to these facts.
LAWRENCE E. KAHN, S.
In this proceeding, petitioner, the former daughter-in-law of decedent, requests that respondent, the surviving spouse of decedent, be required to produce decedent's purported last will and testament, or in the alternative, disclose the whereabouts of such will if she knows of it. Petitioner is also the mother of Andrew Aberman and Steven Aberman, grandchildren of decedent and respondent. Petitioner's former husband is still living, and therefore, their issue are not distributees of decedent. Nor is petitioner, as decedent's former daughter-in-law, a distributee of decedent.
There is another action presently pending in Albany County Supreme Court, wherein petitioner, as mother and natural guardian of Andrew Aberman and Steven Aberman, infants under the age of 18 years, names respondent herein both personally and as fiduciary of decedent's estate, as defendants. Court records show that respondent has not applied for nor been appointed fiduciary in her husband's estate. To date, there has been no estate administration for this decedent.
In the original petition duly sworn to and verified by petitioner on November 22, 1978, petitioner states that "I have attempted to locate a Last Will and Testament and have not found any." She also alludes to the fact that she thinks her children may have received a legacy under this purported last will and testament and that therefore, acting in their behalf, she is requesting that the document be produced for discovery and offered for probate. Yet uncontradicted facts have since been presented which establish that petitioner and/or her attorney did in fact possess extensive knowledge of the contents of the decedent's purported last will and testament. A copy of the purported last will and testament is annexed to the affidavit in opposition, and apparently is also part of the record in the pending Supreme Court action. Perusal thereof, indicates without a doubt, that neither petitioner nor her children receive any legacy under this document, contrary to the assertions in the verified petition. Had this entire factual situation been set forth in the petition, the order to show cause would not have been issued.
There is no standing by petitioner, either in her individual capacity or as representative of her infant children, to compel production of the purported last will and testament. Petitioner relies on SCPA 1402 (subd 1, par [c]) which states that a petition for probate of the will may be presented by any party to an action, brought or about to be brought, in which action the decedent, if living, would be a party. However, this section does not salvage petitioner's position nor confer standing to compel production of the purported will. The Supreme Court action commenced by petitioner relates to possession of certain real property held by decedent and respondent as tenants by the entirety. Upon the death of decedent, title to the premises passed by operation of law to respondent. Such property is not part of decedent's estate and would not be affected by the probate of his purported last will and testament. The mere naming of the estate as a party to the Supreme Court action does not enable petitioner to circumvent the requirement of a cognizable, real interest in the estate of decedent in order to have standing to compel production of the purported document in question.
Upon oral argument of this motion, mention was made as to the possible existence of an alleged prior will. SCPA 1403 (subd 1, par [c]) confers standing upon certain parties named in an earlier will, but omitted from a later instrument offered for probate. However, this issue has not been presented in the instant pleadings before the court.
Accordingly, the motion is denied, with costs awarded to respondent.
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