Opinion
November 14, 1979
Shea, Gould, Climenko Casey for petitioners.
Reavis McGrath for respondent.
Lapp, Schacher Bradie, guardian ad litem.
Robert Abrams, Attorney-General, for State of New York.
In this contested probate proceeding, preliminary letters have issued to one of the nominated fiduciaries. The decedent's mother is in advanced age and has requested that the trust provided for her under article THIRD of the decedent's will be funded. All parties interested, including the guardian ad litem, have no objection for partial probate of the decedent's will to the extent that article THIRD A (1 and 2) be implemented at this time pursuant to the petition for the partial probate. Objections to probate do not relate to this article nor to the petitioner being one of the executors. Objections to the propounded instruments primarily deal with an allegation of undue influence concerning the residuary clause of the decedent's will.
The New York law is clear that partial probate is possible (Matter of Satterlee, 2 N.Y.2d 285; Matter of Weinstock, 78 Misc.2d 182, revd 47 A.D.2d 542, revd 40 N.Y.2d 1); but the question of permitting partial probate prior to determining whether or not a part of the will should be excluded is novel (Matter of Okin, 100 Misc.2d 1020) as opposed to having a final determination in the entire probate proceeding as was set forth in the two afore-mentioned estates.
The court must, at this time, determine whether partial probate would be permissive and proper since the court, even with all parties consenting, cannot broaden the authority of the preliminary executrix to implement the agreement by making partial distribution (SCPA 1412, subd 3; Matter of Jessen, NYLJ, Oct. 25, 1973, p 16, col 7). Although the question is novel, the court sees no reason why the relief should not be granted. Limited letters will issue to the petitioner as executrix and trustee so as to arrange for the distribution sought as prayed for under the conditions recited in the Attorney-General's consent.
The foregoing is subject to the submission of SCPA 1406 affidavits of the attesting witnesses to the propounded will and codicil and said affidavits are to be submitted for the sole purpose of the admission of partial probate heretofore provided for and without prejudice to any rights of any of the parties as to the balance of the provisions set forth in the propounded instruments.