Article 14: Increased Probate Efficiency

by Hon. C. Raymond Radigan

After my first report in 1991 as chairman of the EPTL Advisory Committee in which we focused on the revision of the Right of Election and Descent and Distribution statutes, we recommended an examination and revision of the remaining articles of the Estate, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA). Upon the Senate and Assembly’s adoption of the EPTL Advisory Committee’s expanded scope, our committee evolved into the EPTL-SCPA Legislative Advisory Committee (committee). In my last column (The New York Law Journal, July 30, 2003, at 3), I indicated I would cover in this column what was set forth in our Second Report with respect to probate proceedings under SCPA Article 14.

I will also be discussing several measures that the committee suggested the Legislature implement in order to increase the efficiency of, and eliminate inequities arising in the most frequently brought proceeding in the Surrogate’s Court, the probate proceeding. The committee’s recommended revisions, discussed infra, derive from our extensive examination of each section of Article 14, as well as the individual experiences of our members.

Will Production
Prior to the adoption of the committee’s recommendations regarding a proceeding to compel production of a will, SCPA § 1401 provided that only those categories of persons enumerated in SCPA § 1402(1), that is, those entitled to petition for probate, could commence such a proceeding. Under the statute, the petitioner is required to demonstrate reasonable grounds to support the allegation that the will indeed existed at one time and that the respondent has knowledge of its whereabouts or destruction. The committee noted several aspects of the then current § 1401 that impeded the efficiency of estate administration and, at times, unduly burdened parties interested in the subject estate. For one, the process, invariably, was time-consuming and, often, expensive to institute and prosecute, since the interested party- petitioner required the retention of counsel’s services, even in instances where the need for counsel would otherwise be obviated. As a result of this, we discovered that an attorney-draftsperson would occasionally maintain a decedent’s will as an inducement for the estate to retain the attorney as counsel. The committee resolved that such manipulative tactics should not endure.

In response to these concerns, the committee recommended that the statute be revised to provide the Surrogate with the authority sua sponte to order the production of a will or an examination of a person either believed to be in possession thereof or have knowledge of its contents. We found that this grant of authority would not only save time and money for estates but also the court’s time in that the court no longer must entertain parties’ formal petitions to commence a proceeding to compel the production of a will or codicil. As a more feasible alternative, the interested party may simply informally communicate its concern to the court, whereupon the latter could then voluntarily act by conducting examinations and issuing document production demands. In addition to the above-mentioned considerations, the committee also noted that such a revision is wholly consistent with the Legislature’s intent to grant to the Surrogate’s Court the authority that is necessary for the efficient disposition of an estate. The Legislature concurred and adopted our recommendations.

Witness Examinations
SCPA § 1404 provided that, prior to filing objections, attesting witnesses to the propounded instrument were the only permissible examinees. Since attesting witnesses frequently were, and often still are, members of the attorney-draftsperson’s secretarial and paralegal staff, they have limited knowledge, if any, of the facts and circumstances relevant to the planning and drafting of the will. In addition, these attesting witnesses were/are often unaware of the circumstances surrounding the will’s execution and their impact on the testator’s capacity, as well as the existence of, or potential for, undue influence. When suspicions arose as to an unduly influenced testator or when a party believed that the testator lacked capacity to duly execute, the potential objectant’s only real redress was to file objections, thereby benefiting from the resulting expanded discovery procedures afforded under Article 31 of the New York Civil Practice Law and Rules. We believed that this only served to increase the filing of frivolous objections. Under the then- current SCPA § 1404, consistent with the public policy of ensuring the validity of a probated instrument, pre-objection examinations of the draftsperson may be conducted. In addition, EPTL § 3-5.5 provided that an interested party may examine attesting witnesses and draftspersons without triggering the application of a will’s in terrorem clause, if included therein.

In an effort to expand the class of eligible pre-objection examinees and, thereby, assuage family differences that arise in contested probate proceedings, we recommended that, where a will contains an in terrorem clause, interested parties also be entitled to examine the will’s proponent and nominated executors. Where a will does not contain such no-contest clause, these examinations must take place after filing objections. The need to file objections would be averted in many instances by utilizing this course of action. Specifically, the filing of objections would be avoided where information collected from these additional examinations allays concerns of the existence of improprieties surrounding the will’s formation or execution. Alternatively, a party could choose to suppress its previous decision to file objections where the additional examinations fail to produce information sufficient to warrant same. The committee noted that, in its members’ experience, upon the filing of objections by a relative or other interested party, the will’s proponent immediately assumes an adversarial posture, which renders bleak the prospect of settlement. As such, we submitted this recommendation, which the Legislature approved, with the dual expectation of reducing contested probate proceedings and encouraging pre-contest settlement agreements.

We also recommended that a corresponding revision be made to EPTL § 3- 3.5(b), which enumerates specific conduct that will not constitute a violative “contest” sufficient to trigger the application of an in terrorem clause. The subparagraph had recently been amended to include as nonviolative conduct the SCPA § 1404 examination of the will’s draftsperson. The committee considered both an in terrorem clause’s purpose of dissuading unwarranted litigious behavior over a will’s probate and the strong public policy of barring from probate an instrument that has been procured through fraud or undue influence. The committee reviewed In re Muller, 138 Misc2d 966, 969 (Sur. Ct., Nassau County 1988), wherein I analyzed both considerations and noted that “the respective aims of the in terrorem clause and SCPA § 1404, namely the prevention of destructive, fruitless litigation are in complete concert ….” Given both the practical and public policy considerations, we found it both appropriate and necessary to recommend, which recommendation was met with legislative approval, that EPTL § 3-3.5(b)’s catalog of permissible conduct be augmented to include an objectant’s examination of the nominated executor and the proponent of the will. The committee did not arbitrarily choose these additional categories of persons but, rather, strategically selected them, as they are the persons most likely to possess an awareness of the facts surrounding the will’s execution as well as the existence of any impropriety arising therefrom. Since its adoption, these additional permissible subjects of pre-objection discovery have decidedly reduced the incidence of frivolous objections that would have otherwise been filed.

Objections to Probate
SCPA § 1410 sets forth the qualifications necessary for an individual to object to the probate of a will. It provides that those persons whose pecuniary interests in the estate would be adversely affected if the will were admitted to probate have standing to object. The standard is different for persons whose only pecuniary interest would be that of a fiduciary commission he or she would have been entitled to had a later instrument not revoked his or her fiduciary nomination. Such objections, according to the statute, are prohibited unless permitted by the court for “good cause shown.” The Surrogates’ Association of the State of New York (association), of which I am past-chairman of the Executive Committee, noted that although the fiduciary, who otherwise would have been entitled to a commission had his or her nomination not been revoked by a subsequent instrument, may derive the motivation to contest from the desire for a commission payment, this, at times, may serve only to impede the administration of the estate and burden it with the costs of a contest or frustrate an amicable family resolution.

The Surrogates’ Courts customarily gave parties an automatic extension of time to file objections until 10 days after completion of the SCPA § 1404 examinations. The statute, prior to our recommendation, however, required objections to probate to be filed within 10 days of the return date of process. Noting the significance of the opportunity to file objections and taking into consideration the common practice of most courts at the time, our recommendation that the statute be amended to codify this time period for filing objections, that is, 10 days following completion of SCPA § 1404 examinations, was duly enacted into law.

Preliminary Letters
Along with the use of attesting witnesses’ self-proving affidavits and the special provisions for the administration of small estates, the creation of preliminary letters testamentary demonstrated the desire to simplify probate when practicable. Letters issue to an executor simultaneously with the probate decree. It logically follows that a delay in probate results in a delay of the fiduciary appointment. In the event of a will contest or an inability to locate the statutory distributees, the fiduciary nominated under the will can nevertheless petition the court for preliminary letters testamentary. The court may so grant the letters, thereby permitting the fiduciary to proceed with the estate’s administration while the probate issue is resolved. See SCPA § 1412.

Prior to our recommendation, discussed below, the committee noted that the surrogates’ courts in some counties entertained petitions for preliminary letters only after objections were filed and then only on notice, even though the statute provided that the court may grant such preliminary letters before the return date of process and before objections are filed. This practice impaired the statute’s original purpose, which contemplated removing the potential for unnecessary delays in estate administrations.

As such, we recommended that requiring notice before the issuance of preliminary letters should remain within the Surrogate’s discretion only in exceptional circumstances. Instead, we recommended that the statute be amended to encourage the practice of prompt issuance of preliminary letters on the court’s own motion. Recognizing the importance of a uniform application of the law, the Legislature adopted our recommendation and enacted it into law. Currently, when a court recognizes an immediate need to put a fiduciary into place, it may entertain an application for preliminary letters testamentary and grant the same before process issues in the underlying probate proceeding. This is not to say that preliminary letters are granted in every case but, rather, the court will require the applicant to produce whatever proof the court deems to be necessary. In addition, if the court has any concerns regarding appointing the particular nominee, it can require the fiduciary to post an undertaking. In re Roth, NYLJ, Sept. 16, 1999 (Sur. Ct., Kings County).

As to undertakings, the committee also recommended a revision to SCPA § 1412’s language concerning the dispensation of filing a bond where the will so explicitly provides. The court exercised a great deal of discretion over the decision whether or not to require a bond from a nominated fiduciary. The popular view, however, was to dispense with the undertaking when the testator had expressly provided for its dispensation in his or her will. Pursuant to the committee’s recommendation, the Legislature amended SCPA § 1412(5) to include a general rule of waiving the necessity of an undertaking when the testator’s wishes were explicitly expressed as such. In extraordinary circumstances, however, the court may safeguard the assets of the estate through the exercise of its discretion and require a petitioner for preliminary letters to post an undertaking in an amount the Surrogate deems advisable.

The above-discussed amendments to EPTL and SCPA demonstrate the committee’s and Legislature’s desire to promote the efficiency of administration while simultaneously preserving the interests of a decedent’s estate.

In my next article I will discuss additional committee recommendations contained in our Second Report regarding costs, allowances and commissions in the administration of an estate.

C. Raymond Radigan is former surrogate of Nassau County and serves as counsel to the Trusts & Estates Department at Ruskin Moscou Faltischek.  He also is chairman of the advisory committee to the Legislature on estates powers and trusts law and the Surrogate’s Court Procedure Act.  Judge Radigan can be reached at 516-663-6602 or
Michael A. DiOrio, Esq., an associate in the Trusts and Estates Department at Ruskin Moscou Faltischek, assisted in the preparation of this article.
Reprinted with permission from the Monday, September 29, 2003 issue of the 
New York Law Journal (c) 2003, ALM Properties, Inc.