Probate Issues

An estate proceeding was brought in Queens County, New York before Surrogate Peter Kelly. In this case the executor, the son of the decedent, asked that his mother’s 2012 Will be probated. The sister had objected to the probating of the Will. She alleged in her application before Judge Kelly that her mother lacked testamentary capacity, there was a mistake, and that the Will was not properly executed.

The Judge’s Decision

Justice Kelly examined the proof submitted concerning the son’s application to probate the Will. He found the attorney draftsman had announced in the decedent’s presence to the other subscribing witnesses the decedent was executing a Will and this was sufficient to satisfy the requirement of an expressed declaration by the decedent that this was her Will. He also found that at a deposition the attesting witnesses established the decedent had the appropriate testamentary capacity to execute a Will. Justice Kelly concluded that the Will was properly executed by the executor’s mother. He also found she had the appropriate capacity to prepare a Will. He dismissed the objections made by the mother’s daughter.

The daughter claimed the instrument was executed by her mother as a mistake because she didn’t understand the contents of the Will. Justice Kelly found these objections made by the decedent’s daughter were “essentially nonsensical”. He went on further to state that a Will, when properly executed, will not be denied to be probated. He found the terms of the Will had to be construed as they were written in the Will. His decision stated “what the testator has done, not what she meant but failed to do is to be given effect.” He granted the petition for probate made by the son and dismissed the cross-petition challenging the probate of the Will made by the decedent’s daughter.