Surrogate Anderson
ESTATE OF JOHN C. KAUFMAN, Deceased (18-969) — In this probate proceeding in the estate of John Kaufman, proponent, decedent’s nephew, moves to strike the SCPA §1404 discovery demands made by respondent, decedent’s wife, on the ground of lack of standing. Proponent also seeks legal fees incurred in preparation of the motion. At the time of his death on February 18, 2018, decedent and his spouse were still married, although they had an uncontested divorce action pending. On November 22, 2017, the parties executed a “Stipulation of Settlement and Agreement” (the “Settlement Agreement”), which provided for the division of their marital assets. Article VII, Paragraph 12, entitled “Mutual Release and Discharge of Claims in Estates,” provides as follows: “Each party, individually and for his and or her heirs, executors, administrators, successors and assigns, hereby waives, releases and relinquishes any and all claims, rights or interests as a surviving spouse in or to any property, real or personal, which the other party owns or possesses at death, or to which the other party or his or her estate may be entitled. Each party recognizes that this waiver includes rights that he or she otherwise might have or acquire under [EPTL] Section 5-1.1-A (including all rights of election) and any amendment thereof or any successor statute. Each party further intends by this waiver a release to relinquish any and all rights in and to the other’s estate including the right of set-off provide[d] in Section 5-3.1 of the [EPTL], any and all distributive shares presently provided in Section 4-1.1 of the EPTL or any prior or subsequent similar provision of law of this or any other jurisdiction. The within waiver under this Article VII shall have full force and effect upon the agreement’s full execution notwithstanding the fact that a final judgment of divorce has not yet been ordered.” (Emphasis added.) Decedent’s will, dated February 1, 2018, divided his estate equally between proponent and another family member. Notwithstanding the above waiver language, respondent requested SCPA §1404 examinations and related discovery, whereupon proponent filed the instant motion. The issue here is whether the Settlement Agreement precludes SCPA §1404 discovery by the wife. The purpose of such discovery is to acquire information that might provide a basis to object to probate (see e.g. Matter of Elyachar, 48 Misc 3d 852 [Sur Ct, Westchester County 2015]; Matter of Roth, 1 Misc 3d 1010[A], 2005 Slip Op 50521[U] [Sur Ct, Bronx County 2005]). Lack of standing to file objections therefore forecloses any such discovery (see e.g. Matter of Peckolick, 167 Misc 2d 597 [Sur Ct, NY County 1996]; Matter of Wallis, NYLJ, July 9, 2008, at 32, col 2 [Sur Ct, NY County 2008]). The class of potential probate objectants is governed by SCPA §1410, which provides that only those whose “interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections…except that one whose only financial interest would be in the commissions to which he would have been entitled if his appointment as fiduciary were not revoked by a later instrument shall not be entitled to file objections to the probate of such instrument unless authorized by the court for good cause shown.” Courts have held that an “interest” within the meaning of the foregoing provision must be pecuniary (see e.g. Matter of Hall, 12 AD3d 511 [2d Dept 2004]; Matter of Silverman, 91 Misc 2d 125 [Sur Ct, NY County 1977]). Movant claims that respondent is foreclosed from seeking SCPA §1404 discovery because she waived all her rights to decedent’s estate in the Settlement Agreement. Respondent, however, contends that the above provisions are not a waiver of her “statutory right [under SCPA §1404] to examine all relevant matters which may be the basis of objections to the probate of the propounded instrument.” According to her, the requested discovery is no different from the discovery permitted under SCPA §1404 when a will contains an interrorem clause. Respondent’s argument, unsupported by any authority, is without merit. Respondent unequivocally waived her right to object to the will in the Settlement Agreement. She therefore has no pecuniary interest in the admission of the will to probate and no standing to file objections (see e.g. Matter of Dindiyal, 2009 NY Slip Op 32215[U] [Sur Ct, Nassau County 2009]). SCPA §1404 discovery would serve no purpose in these circumstances. Therefore, proponent’s motion to strike is granted. However, proponent’s request for payment of his legal fees is denied. Although respondent’s arguments in support of her motion were unavailing, they do not warrant the imposition of sanctions. This decision constitutes the order of the court. Dated: July 6, 2020
