Phyllis Frank, mother of Erich Frank (hereinafter, “decedent”) and his sole distributee (hereinafter, “movant”), requests this court vacate a probate decree entered on May 2, 2019, which admitted to probate decedent’s will dated December 21, 2018 (hereinafter, “will”); allow her to conduct SCPA 1404 examinations; and further, permit the filing of objections to the will. Movant asserts that she was not properly served with the citation and will and, alternatively, that she has a reasonable cause for her default and a meritorious defense. The executor of the will, Frank Sabia (hereinafter, “executor”) opposes the application to excuse movant’s default and to vacate the probate decree. The following papers numbered 1 through 8 were read: Papers Numbered Notice of Motion — Affidavit — Exhibits 1-3 Affidavits of Service 4 Affirmations in Opposition — Exhibits 5 Affidavits of Service 6 Reply Affirmation 7 Affidavits of Service 8 On December 20, 2018, while he was at home receiving hospice care, decedent spoke to the attorney who drafted the will. Decedent also changed his beneficiary designations on his 401k and life insurance to favor Emily Rosen (hereinafter, “Emily”), decedent’s alleged girlfriend, and added her to his bank account, making it a joint account. The next day, on December 21, 2018, two attorneys returned to the decedent’s home and supervised and witnessed the execution of the will. The witnesses also executed a self-proving affidavit. Under the 27-page will, Emily, receives the tangible personal property and 62 percent of the residuary estate, movant receives 18 percent of the residuary, and the decedent’s two sisters, Hilarie Frank (hereinafter, “Hilarie”) and Jayne Tuchman (hereinafter, “Jayne”), each receive 10 percent of the residuary. Either Hilarie or Jayne, along with Emily, was with the decedent on both December 20 and 21 when the attorneys were present, however none of them were in the room when the estate plan was being discussed or documents were being executed. Decedent died sixteen days later, on January 6, 2019. According to the affidavit of service, Ariel G. Roth served a copy of the probate citation, along with a copy of decedent’s will, upon Phyllis Frank, on February 8, 2019. The probate citation set the return date on March 12, 2019. According to the March 12, 2019 affidavit of service, all relevant papers were served on February 8, 2019 via federal express for overnight delivery addressed to movant at her domicile of 7903 Rockford Road, Boynton Beach, Florida. Delivery was acknowledged as received on February 11, 2019. On or about February 15, 2019, movant was hospitalized and sustained a brain injury from a fall. Movant did not leave hospital care until April 9, 2019, at which time she still had cognitive defects. While in the hospital, on February 26, 2019, movant executed a durable power of attorney appointing her daughter Jayne, as her agent. Movant alleges that she was not properly served and that the probate decree should be vacated for lack of personal jurisdiction. As a non-domiciliary, movant was required to be served pursuant to SCPA 307[2] and service of process is deemed completed pursuant to SCPA 309[2]. The affidavit of service dated March 12, 2019 is prima facie proof of proper service and completion of personal jurisdiction in accordance with the statutes (see Matter of Nieto, 70 AD3d 831 [2nd Dept 2010]). There is no requirement that the movant actually received the mailing for the court to acquire jurisdiction (see Estate of Daniel, NYLJ Mar 31, 2003 at 7, col 1 [Sur Ct, Duchess County 2003]). Movant has supplied no evidence or law to support her claim that service of process was either not proper or incomplete. Accordingly, movant is deemed properly and timely served and this court had personal jurisdiction over her in the probate proceeding. Alternatively, movant asserts that the probate decree should be vacated because she has a reasonable excuse for her default and a meritorious defense. Pursuant to CPLR 5015[a][1], movant’s motion for excusable default must be made within one year after service of copy of the order with written notice of its entry upon her. Movant filed her instant notice of motion on August 16, 2019, well within a year of the May 2, 2019 probate decree. CPLR 5015[a][1] also requires that movant’s default be excusable. It is the court’s discretion to determine what constitutes a reasonable excuse for default (see Estate of Grimaldi, NYLJ, Nov 14, 2006 at 23 col 1 [Sur Ct NY County, 2006]). Additionally, the movant must show meritorious objections to probate and the absence of prejudice to executor (see id). The court has an independent obligation to be satisfied as to the validity of the will (see SCPA 1408[1]; Estate of Hacker, NYLJ, Feb 11, 1992 at 2, col 6 [Sur Ct Bronx County 1992]). Movant was hospitalized with a head injury within days of being served the probate citation. Even when she returned home, almost a month after the citation return date, movant was still cognitively impaired. Movant appointed Jayne as her agent on February 26, 2019, approximately two weeks before the return date on the probate citation. However, Jayne was not served as movant’s agent and Jayne is not a party to this proceeding. In opposition to the motion to revoke probate, executor notes that on February 20, 2019, Hilarie stated in an email to him that “[w]e have no plans to contest the will, we do not have the funds.” However, Hilarie was not the agent of movant. Moreover, Hilarie’s email when read in its entirety makes it abundantly clear that decedent’s family were very concerned with the fact that decedent’s estate plan was “inconsistent” with what he had told his mother and what the family understood his estate plan had been for decades. Additionally, Hilarie states in that email that “the family” thought that decedent was not competent to add Emily to his bank account or to change the beneficiary of designation of his life insurance and 401k, both to also favor Emily. The February 20, 2019 email indicates that Hilarie copied Jayne on the email. In fact, as executor notes, movant, through counsel, is involved in a complaint in interpleader filed June 21, 2019 by Aetna Life Insurance Company [US District Court, ED California, case no. 2:19 at 505] concerning the December 20, 2018, change of beneficiary designation on decedent’s $150,000 life insurance policy. Aetna states in its papers that on January 25, 2019, movant, through counsel, contacted decedent’s employer alleging that the decedent was incompetent to change the beneficiary designation from her to Emily and/or that the change was the product of undue influence by Emily. Aetna’s papers further state that on April 9, 2019, Jayne, in her capacity as agent for movant, through counsel, was in contact with Aetna requesting that the interpleader be filed. Nonetheless, this is almost a month after the return date of the probate citation. Furthermore, movant’s counsel in this federal proceeding filed in California did not appear in the probate proceeding and movant was self-represented throughout the probate proceeding. Movant’s hospitalization constitutes a reasonable excuse for her default in the probate proceeding (see Matter of Cayard, NYLJ June 29, 2011, at 29 col 2 [Sur Ct Queens County, 2011]). Movant’s allegations concerning decedent’s health at the time the will was executed, along with the timing and changing of his estate plan from the natural object of his bounty to Emily raise meritorious questions concerning the validity of the will. Finally, given the that the instant motion was filed slightly more than three months after the probate decree was entered, it cannot be said that the executor is prejudiced by the revocation of the probate decree (see Estate of Sokol, NYLJ, Jan 9, 1995 at 30, col 1 [Sur Ct, Queens County 1995]). The court acknowledges that it is not the litigants’ fault for the court’s delay, due to the Covid-19 Pandemic, in responding to the instant application. Accordingly, based on the foregoing, it is ORDERED that, movant’s motion to vacate the probate decree entered May 2, 2019, is granted; and it is further ORDERED that, movant has 90 days from the date of this decision to conduct discovery and file objections to the will, if any, and it is further ORDERED that, if objections to the probate of the will are not served and filed within 90 days of this order, the probate proceeding will be deemed uncontested and the parties should proceed accordingly. The Clerk of the Court is directed to email a copy of this decision counsel of record listed below and to mail a copy, by regular mail and certified mail to the movant, who is self-represented, to at her address of record listed below. Dated: May 25, 2023
