Decision and Orders signed: March 25 & 26, 2024 Surrogate Gingold
ESTATE OF TANYA J. CORBIN, Deceased (09-0437.1) — In this contested executor’s accounting in the estate of Tanya J. Corbin, the executor moves for summary dismissal of objections relating to the validity of the probate decree (CPLR 3212) and to compel responses to outstanding discovery demands without identifying what procedural mechanisms he is relying upon to achieve the relief he seeks. However, since objections were filed here, i.e., issue has been joined, thus the court will treat the executor’s motion as one for summary judgment pursuant to CPLR 3212 (see Tufail v. Hionas, 156 AD2d 670 [2d Dept 1989] [where issue had been joined, court should not have deemed unlabeled motion as motion to dismiss, but rather, as one for summary judgment], citing Rich v. Lefkovits, 56 NY2d 276 [1982]), and further, the branch of the executor’s motion seeking response to discovery demands as one seeking relief pursuant to CPLR 3124 and 3126. Objectant cross-moves, relying upon CPLR 3212, for vacatur of the probate decree on jurisdictional grounds. Background Testator died on July 24, 2008, at the age of 88, survived by her husband, Sol, and son, David. Under her will, dated April 18, 2005, she provided for the distribution of her more than $6 million estate as follows: she left to Sol, the nominated executor, the bulk of her tangible personal property and any residences she owned at her death. She also made pre-residuary bequests of $100,000 to David and her brother, Irwin, leaving the residue of her estate in trust for David’s lifetime benefit, with the remainder to several charities. David and Sol each executed a Waiver of Process and Consent to Probate, and the will was admitted to probated on February 25, 2009. Letters Testamentary then issued to Stephen B. Silverman, who was not named in the instrument but was designated by David pursuant to the will after Sol and the two nominated successor fiduciaries renounced. At David’s request, Silverman has served as executor without commissions. In July 2010, Silverman filed his account as executor (Account). As amended and supplemented, the Account covers the period from decedent’s death (July 24, 2008) to June 30, 2014. A guardian ad litem appointed for Sol, who was by then under a disability, filed a report stating that the executor had properly accounted for all property bequeathed to Sol under the will. In December 2015, David and Young Hee Ko, the trustee of the trust established under the will (Trustee) filed identical objections to the executor’s Account. The objections fall into two categories: those that challenge the validity of the February 25, 2009 probate decree on the ground that Sol lacked the capacity to consent to probate and those that take issue with various aspects of the executor’s administration of the estate. The record contains no explanation for why the Trustee filed objections challenging the validity of the probate decree, given that the charitable beneficiaries of the trust would be harmed if the court vacated the decree, which admitted to probate the will that established the Trust. After Sol died in 2015, the executor amended his petition to include David as a party since he had been appointed the fiduciary of his father’s estate. David appeared in that capacity in September 2016. Thereafter, the instant cross-motions were filed. The Trustee joined in David’s cross-motion and opposed the executor’s efforts to dismiss the objections. Confirming the inexplicable nature of the Trustee’s position on the motions, the Attorney General of the State of New York, on behalf of the ultimate charitable beneficiaries, i.e., the remaindermen of the trust (EPTL 8-1.1 [f]), submitted papers in support of the executor’s motion and in opposition to David and the Trustee’s effort to vacate the probate decree.
