Decision & Orders signed: July 17, 2023 Surrogate Gingold
ESTATE OF DEBORAH DEANGELIS, Deceased (21-2811) — Decedent passed away on August 25, 2020. Petitioner submitted a conformed copy of decedent’s will for probate. The attorney-draftsperson, Arthur Toback (hereinafter, “Toback”), who is also decedent’s first cousin and a distributee, states the will was validly executed and witnessed by Toback and two other attorneys at his firm. After execution, the will was kept in his firm’s safe. Toback retired in 2014, and since decedent’s death, he has been unable to locate the original will. Toback alleges he wrote decedent a letter in 2014 asking her where to send the original will for safekeeping, however he does not have a record of a response or of sending decedent her original will. Toback states upon retiring, he gave the original wills and records of all correspondence to his former law partner. The law partner cannot find any of decedent’s records except for a draft of the 2014 letter sent to decedent. The will leaves decedent’s estate in four equal shares to her three stepchildren and her son, who predeceased her. Pursuant to the terms of the will, the predeceased son’s share passes to decedent’s three stepchildren. Petitioner is the nominated executor and Toback is nominated as successor executor. The will and affidavit of attesting witnesses submitted to the court were conformed copies of originals with “s/” written in on decedent’s signature line and “s/” with the witnesses’ names and addresses written on the appropriate lines. Toback provided the conformed copy of the will, but does not specify in his affidavit where he received this copy. Petitioner petitioned for probate and letters testamentary with the conformed copy of the will. Wilensky was served with a citation with a return date of September 27, 2021. Petitioner served Hanauer by substituted service on February 16, 2022 with a supplemental citation with a return date of March 7, 2022. Neither Wilensky nor Hanauer appeared or objected to probate on or before March 7, 2022. On or about April 1,2022, Hanauer submitted a document entitled “Objection to Admitting Copy of Will.” It was unverified, and was rejected. On or about April 3, 2022, Hanauer submitted a document entitled “Amended Objection to Admitting Copy of Will.” The document was verified, but it was rejected because it was past the return date. Movants both filed a joint motion to consider objections as timely filed on May 12, 2022. Wilensky included a verified objection to admitting a copy of the will. The objection alleges (1) the will was not duly executed, (2) the will is not a copy of an executed will, (3) lack of testamentary capacity, and (4) undue influence. Wilensky states in her attached affidavit that she lives in an assisted living facility, and mail has been unreliable, especially since the pandemic. She states, “I do not always get my mail on a timely basis and cannot be certain when or even if I actually received what I now understand to be papers mailed to my address in this case,” instead only learning about the papers through a nephew in New York. Hanauer’s attached affidavit states she received the papers by mail, but that she does not think that service by mail was effective. Both affidavits state that movants, who are self-represented, “were not familiar with the procedures of the Court and the failure to tiely [sic] file was inadvertent and the result of a failure to properly calendar the deadline to file.” They also state that no party will be prejudiced by allowing the objections to be marked as timely. Petitioner opposes the motion to file untimely objections, alleging movants failed to offer any reasonable excuses for their default or any meritorious claim. Petitioner also argues he will suffer prejudice if the motion is granted as the appointment will be further delayed and the estate will incur additional resources and expenses.
