DECISION and ORDER The decedent, Florence Greenberg Carney, died on July 7, 2010, at the age of 83. She is survived by her daughter, Blair Carney Staebler, who objected to a specific portion of the instrument dated June 11, 2008, which has been offered for probate by decedent’s nephews, nominated co-executors and co-trustees, Richard Narad and Charles Eric Narad.1 Ms. Staebler’s objection relates solely to the nomination, under Article SEVENTH of the propounded instrument, of these individuals as co-trustees for three separate trusts which decedent directed be established from her residuary estate for the benefit of her three granddaughters, Ms. Staebler’s children. The objections do not take issue with the validity of the propounded instrument.The basis for Ms. Staebler’s objection to the above-mentioned provision of the propounded instrument is that, during litigation with her mother in Supreme Court, Suffolk County, which was eventually settled by the parties in an agreement placed on the record in open court in September 2006, decedent promised that, if she left her granddaughters an inheritance in trust, she would name Ms. Staebler as co-trustee to serve along with “an institutional co-trustee of the plaintiff’s [decedent's] choosing.” In the propounded instrument, however, decedent instead nominated Richard and Charles as co-trustees for the trusts for the benefit of her granddaughters. In her pleading, Ms. Staebler requests that the court “correct the will” and appoint Ms. Staebler as one of the trustees.Following the filing of Ms. Staebler’s objection, a guardian ad litem was appointed to represent the interests of decedent’s granddaughters (SCPA 403). The guardian ad litem, June R. Mann, Esq., rendered a Report and Recommendation wherein she recognizes the limited scope of Ms. Staebler’s objection and states that, after investigation, she concludes that the propounded instrument satisfies the requirements of EPTL 3-2.1 and that decedent was competent to make a will, was not under any restraint, and that the will is genuine. Therefore, the guardian ad litem recommends that the propounded instrument be admitted to probate “even if minor matters remain unresolved.”Under SCPA 1408, the court must admit a will to probate when satisfied that it is genuine, was duly executed, and that the testator was competent to make the will and not under restraint. This is so even if certain provisions of the will may be inoperative (see Matter of Higgins, 264 NY 226, 229 [1934] [court has no power to withhold probate of genuine, validly executed instrument even if testator may have bound herself by earlier contract to a different disposition]; see also Matter of Coffed, 46 NY2d 514, 519 [1979] ["Conceptually the contract to make a testamentary provision is separate and distinct from the will itself. While the contract might be enforceable in equity, from a technical standpoint it has no effect upon the will's status as a legal instrument"]).Here, there being no objection to the validity of the propounded instrument and the court being satisfied of its genuineness, the instrument is admitted to probate as decedent’s last will and testament. However, issuance of letters of trusteeship is stayed pending determination of Ms. Staebler’s objection and application for appointment as trustee. The parties will be contacted by the court for an in-person conference. It is, therefore,ORDERED AND DECREED that the instrument offered for probate herein be, and the same hereby is, admitted to probate as the Last Will and Testament of the above-named decedent, valid to pass real and personal property, that the will be recorded and that Letters Testamentary issue to Richard Narad, upon his properly qualifying for such office; and it is furtherORDERED AND DECREED that the preliminary letters testamentary previously issued are hereby revoked; and it is furtherORDERED that the issuance of letters of trusteeship is stayed pending further order of this court.Clerk to notify.Dated: July 9, 2018
