[*1]
Matter of Kryk
2007 NY Slip Op 50966(U) [15 Misc 3d 1133(A)]
Decided on May 10, 2007
Sur Ct, Monroe County
Calvaruso, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 10, 2007
Sur Ct, Monroe County


In the Matter of the Probate Proceeding of Olga H. Kryk, Deceased.




2006-2203



Robert D. Schultz, Esq., for David J. Kryk and Dawn S. Kryk, Proponents.

Paul Aloi, Esq., for Kenneth Kryk and Kathleen Jada, Respondents.

Edmund A. Calvaruso, J.

BACKGROUND


Proponents have brought this motion to dismiss the objections on the basis that they were filed after the filing deadline under SCPA 1410 had passed. Respondents argue that the court should allow their objections despite the procedural deadline. The court agrees with respondents and will accept the objections as filed.

DECISION


SCPA 1410 sets forth the time by which objections to probate must be filed:

...on or before the return day of the process or on such subsequent day as directed by the court; provided, however, that if an examination is requested pursuant to 1404, objections must be filed within 10 days after the completion or such examinations, or within such other time as is fixed by stipulation of the parties or by the court.

The 1404 examination was held on Monday, January 8, 2007. The statutory deadline for filing the objections would have therefore been Thursday, January 18, 2007. However, after the testimony was taken, the respondents were directed by the referee to submit their objections within ten days of the receipt of the transcript from the 1404 proceeding. This direction by the court effectively superseded the statutory deadline and extended the time to file until January 26, 2007 (ten days after the official transcript was filed with the court). Respondents' counsel was mistakenly waiting to personally receive a copy of the transcript before he had filed his objections. Nevertheless, he quickly filed his papers on January 30, 2007, when opposing counsel suggested to him that his filings were late. Proponents seek to have the objections [*2]dismissed for lateness.

The Surrogate has the duty to independently review the evidence in each probate proceeding and make a determination that a propounded instrument is indeed the last Will of the decedent: "before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution." SCPA 1408. Included in this is a thorough evaluation of any objections or potential objections to the propounded will. The law gives the Surrogate the discretion to extent the timeline for filing objections, SCPA 1410, as well as to accept objections which were filed late, so as not to dismiss potentially valid concerns with the propounded will on solely a procedural ground:

The Surrogate's Court has the discretion to allow the filing of objections beyond the time limitation established in SCPA 1410 as that court's paramount concern is to admit only valid wills to probate Estate of Orlowski, 281 AD2d 422 (2nd Dep't, 2001).

Surrogates properly exercising their discretion to accept late filings have been affirmed based upon the fact that the right to contest a will is said to be a "substantial" right. Warren's Heaton on Surrogate's Courts, §42.02, quoting In Re Wiberg's Will, 197 Misc. 511 (1950).

Factors for the Surrogate to consider when determining whether or not to allow a late filing of probate objections are, the reason for the delay, the extent of the delay, the deliberateness of the default, prejudice which might result, and the merits of the objections. Anolick v. Travelers Ins. County, 63 AD2d 665 (1978). For short gaps (a few days to a month), no affidavit of merit has been required. Warren's Heaton, supra. Here, the longest gap between the filing deadline and the date the objections were actually filed was only four days. This delay was only a brief one and it was not caused purposefully. Proponents were aware that potential objections were outstanding, indeed were in contact with opposing counsel about it. In the Arpels case, proponents were estopped from arguing that late objections were precluded under SCPA 1410 when proponents' and respondents' counsel were corresponding with regard to potential (though yet unfiled) probate objections. Estate of Arpels, 181 AD2d 423 (1st Dep't, 1992). Finally, proponents here have shown no evidence of prejudice from the four day delay. Therefore, the facts of this case fit easily within the Anolick guidelines. Accordingly, the objections filed on January 30, 2007 will be accepted. Parties are to conduct their discovery accordingly and report to the court as to status within sixty days.

Date: May 10, 2007Edmund A. Calvaruso

Hon. Edmund A. Calvaruso, Surrogate