Surrogate MellaESTATE OF MARILYN LAMARCHE-MANDELL, Deceased (18-2459) — This is a proceeding commenced by the surviving spouse of decedent Marilyn LaMarche-Mandell, pursuant to SCPA 1401, to compel the production of an instrument dated September 27, 2017, purported to be decedent’s Last Will and Testament (the “instrument”). Respondent Alison Frank, decedent’s niece and the nominated executor under the instrument, through her attorney, filed the original instrument with the court on September 13, 2018, five days prior to the return date of the SCPA 1401 order to compel. On the return date of that order, the court noted that the portion of the petition seeking production of the instrument was moot.The balance of the petition sought the imposition of petitioner’s attorneys fees against respondent. Petitioner alleges that he received a letter dated May 17, 2018, from respondent’s attorney, which asked him to execute a “Waiver of process: Consent to Probate” form in support of respondent’s petition to probate the instrument. In response, petitioner, through his attorney, declined to execute the document and expressed his intention to file a notice of election once respondent filed the probate petition. Petitioner further alleges that “despite a request that she do so, Respondent has neither offered the [instrument] for probate, nor filed the original with the Court, thereby precluding Petitioner from exercising his statutory right of election.” No proof was produced, however, to substantiate petitioner’s efforts to have the instrument filed prior to the commencement of the instant SCPA 1401 proceeding on June 22, 2018.After hearing from the parties on the record, the court denied the request for imposition of attorneys fees in light of the absence of any support for the conclusion that respondent, without good cause, withheld the production of the instrument (SCPA 1401 ["The court may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil"]; see Matter of Oshins, NYLJ, Dec. 20, 2016, at 22, col 2 [Sur Ct, NY County]; Matter of Slavin, NYLJ 1202749729202 [Sur Ct, NY County 2016]; cf. Matter of Schmertz, NYLJ, Mar. 3, 2016, at 25, col 3 [Sur Ct, NY County] [awarding petitioner's attorneys fees when respondent failed to produce will in response to petitioner's request made nine months prior to commencement of proceeding in conjunction with other conduct causing delay]).This decision, together with the transcript of the September 18, 2018 proceedings, constitutes the order of the court.Clerk to notify.Dated: December 19, 2018
ESTATE OF ERICA RICK, Deceased (18-2288) — Amy Rick has petitioned in the estate of her mother, Erica Rick, for probate of an instrument dated March 8, 1984, as an ancient document and the issuance of letters testamentary to her and to her brother, Steven Rick-decedent’s only other distributee-the persons named in the instrument as co-executors. Steven consents to the petition.Decedent died on May 12, 2017, at age 97, leaving a $650,000 estate. The propounded instrument contains a single dispositive provision: The entire estate is to be divided equally between decedent’s two children, the identical result that would obtain under intestacy. Petitioner retrieved the more-than-thirty-year old instrument from decedent’s desk drawer in her apartment, the exact spot decedent repeatedly had described as its location.The attorney, who apparently drafted the instrument and who also acted as an attesting witness, died on June 4, 1999. After a diligent search, neither of the two other attesting witnesses has been located within this state.A propounded instrument may be admitted to probate as an ancient document if-as in the instant case-it is more than 20 years old, it was located in a natural place of custody, and its nature is unsuspicious (see Matter of Tier, 3 Misc 3d 587, 591 [Sur Ct, NY County 2004]). Moreover, the apparent supervision of the execution of the instrument by an attorney and the presence of an attestation clause establish a presumption that the will was duly executed (see Matter of Halpern, 76 AD3d 429, 432 [1st Dept 2010], affd 16 NY3d 777 [2011]).The requirement having been met (SCPA 1408; EPTL 3-2.1), the instrument dated March 8, 1994, is admitted to probate.Probate decree signed.Date: December 19, 2018
