ESTATE OF CHRISTOPHER SPOLLEN, Deceased (19-1136/a) — On April 23, 2021, this court entertained the petition of Anne Spollen to vacate the probate decree pursuant to SCPA §209. The probate decree in this estate was issued on November 27, 2019. Probate was granted to the surviving spouse of decadent pursuant to a Last Will and Testament dated August 26, 2019. The petition was fully briefed and submitted. After review of the file, petitioner has not provided this court with a basis to vacate the decree. The SCPA provides little statutory authority to vacate a decree. Thus, when the SCPA is relatively silent, the court will look to the CPLR, in this proceeding, CPLR 5015. Under that statute, vacatur can be granted on the basis of excusable default, newly discovered evidence, fraud or misrepresentation, or in the interest of justice. To prevail, the petitioner would have to show that the allegations in the pleading have merit and present a reasonable probability of success on their claims. In re Wang, 5 A.D. 3d 785 (2d Dept. 2004) Petitioner’s allegations in the pleading are conclusory statements unsupported by sufficient evidence which would afford a substantial basis for a will contest. Matter of Will of Boyce, 158 A.D. 2d 422 (1st Dept. 1990). The allegation of Petitioner that there existed a testamentary instrument earlier in time than the 2019 Last Will and Testament is also unavailing. Petitioner could not supply the court with an original instrument, and the purported instrument’s execution was not supervised by counsel who may have a record of its existence. Further, one of the witnesses to the purported earlier instrument was the petitioner herself, who was also named as a beneficiary and executor. No affidavit was submitted by the second alleged witness to the purported instrument. Petitioner did submit affidavits from two friends with regard to their relationship with decedent and his wife. The affidavits may present a lack of a relationship with decedent and his wife in later years, however, each affidavit evidences that both decedent’s friends and family were aware of his demise. As such, any action on his estate could have been commenced at the time of his death. It is important to note that decedent’s Last Will and Testament left his estate to the natural object of his bounty, his spouse of ten years. The execution of the August 26, 2019 testamentary instrument was supervised by an attorney, and witnessed by two disinterested witnesses, who also provided affidavits attesting to its execution. Therefore, the petitioner is without standing as defined in SCPA 103(39) and the petition within is denied. The proceeding is dismissed. Dated: August 2, 2022
