GUARDIANSHIP OF ANA L.V.C. Pursuant to SCPA Article 17-A (67G2001/A) — In this proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act, the respondent’s brother, who was appointed a standby guardian of the respondent’s person pursuant to a decree dated January 31, 2002 that also determined the respondent to be intellectually disabled, seeks to amend that decree to appoint himself as guardian of the respondent’s person. In addition, the January 31, 2002 decree appointed the respondent’s mother as the guardian of her person and she now seeks to be relieved as such. The decree further appointed the respondent’s father, who is now deceased as the stand by guardian. Upon the documentary proof submitted, it appears that the proposed successor guardian is qualified to assume the responsibility of serving as the respondent’s guardian. Accordingly, the application is granted. The respondent’s brother, Richard V., is appointed successor guardian of her person. The letters of guardianship that issued to Ana V. are to be revoked and the appointment of Alexander V. as standby guardian and Richard V. as first alternate standby guardian are to be vacated in the order amending the January 31, 2002 decree to be entered hereon. The Chief Clerk is to mail a copy of this decision and the order amending the decree to the pro se petitioner. Order amending decree signed. August 16, 2022
ESTATE OF JOHN SHOPE (22-467) — This is an uncontested proceeding to probate, as an ancient document, a purported will dated December 29, 1977 and a codicil dated August 31, 1981. The decedent died on May 1, 2021, survived by a wife and a son, who are his only distributees. The spouse is the proponent and the sole beneficiary of the estate under the proffered instruments. A waiver and consent was filed for the decedent’s son. The purported will consists of five pages. The decedent’s initials appear on all but the instrument’s final page, which bears the signatures of the decedent and three witnesses and contains an attestation clause. The instrument is regular on its face, except that Article Ninth appears immediately after Article Seventh in the document, and there is no Article Eighth. It is apparent to the court that this is nothing more than a typographical or scrivener’s error. The affirmation of the petitioner’s attorney establishes that the instrument’s attorney-draftsman and two of its three witnesses predeceased the decedent. After diligent efforts, the third witness was located, but she could not execute an SCPA 1406 affidavit due to her advanced age and poor health. According to the spouse, the instrument was given to her by the decedent and stored in a safe deposit box. When the decedent died, she retrieved the instrument from this location in an unaltered form. Notably, the instrument and the spouse’s own will were drafted by the same attorney, contain reciprocal provisions and establish the same testamentary plan. As for the proffered one-page codicil, it is also regular on its face and drafted by the same attorney who prepared the alleged will. The instrument bears the signature of the decedent and three witnesses, and contains an attestation clause. In it, the decedent ratifies, confirms and republishes his December 29, 1977 will to the extent it is not modified by the purported codicil. A self-proving affidavit signed by the three witnesses is attached to the instrument, stating, inter alia, that its execution was supervised by an attorney, giving rise to a presumption of due execution; that the instrument was signed by the decedent in their presence; that the decedent appeared to be of sound mind, memory and understanding; and that the instrument was knowingly and voluntarily executed by the decedent. To be admitted to probate as an ancient document, a will must be more than 30 years old, unsuspicious in nature and taken from a natural place of custody (see Matter of Brittain, 54 Misc 2d 965 [Sur Ct, Queens County 1967]). Moreover, the attestation clause is entitled to weight in determining due execution (see Matter of Cottrell, 95 NY 329 [1884]). On this state of the record, the proffered will meets the requisite criteria to be admitted to probate as an ancient document. Further, the court is satisfied that the decedent executed the propounded codicil in compliance with the statutory formalities and that, at the time of its execution, the decedent had testamentary capacity and free from restraint (see SCPA 1408; EPTL 3-2.1). Accordingly, the petition is granted, and a decree has been entered admitting the December 29, 1977 will and the August 31, 1981 codicil to probate. Decree signed. August 19, 2022
