This is a petition to vacate a decree of probate.

Marie Claude Benoit died on October 6, 2013, a resident of Nassau County. She was survived by her sister, brother, mother and spouse. Petitioner, Herbert Jean Louis, is the surviving spouse of decedent. The court's record indicates that petitioner received service of citation in the probate proceeding by mail to an address in Haiti; he did not interpose objections or otherwise appear in the proceeding. A decree issued on June 24, 2014 admitting to probate an instrument dated September 28, 2013. Letters testamentary issued to decedent's brother, Charles H. Benoit, respondent herein. The instrument devises and bequeaths a substantial share of the estate to Madeline Carrenard, who was decedent's mother, Martine Benoit, decedent's sister, and respondent, Charles H. Benoit. Petitioner is not specifically excluded as a beneficiary, as the will bequeaths petitioner twenty-five percent of any retirement funds or pension funds resulting from decedent's employment with the Visiting Nurse Service of New York. A brief history of the proceedings to date may help to bring the issues in clearer focus.

Petitioner avers that he did not receive a citation in the probate proceeding (SCPA 1403). Petitioner alleges there were multiple wills circulating that were claimed to be signed by decedent. Petitioner is arguing, inter alia, that he was not notified that Charles H. Benoit filed a petition in court on January 6, 2014. Mr. Benoit is represented in this proceeding by attorney Jeffrey A. St. Clair. Mr. Louis's previous attorney, Jennifer C. Meusel, avers in an affidavit that she sent a total of fifteen letters to Mr. St. Clair, advising him that she represented Mr. Louis and requesting certain information from Mr. St. Clair such as a copy of the Last Will and Testament and information as to the assets of the estate. Ms. Meusel also avers that she spoke on the phone with Mr. St. Clair, that both of them were aware of their respective positions in this matter and that she offered to provide Mr. Louis's address to Mr. St. Clair; Mr. St. Clair denies that she ever offered to provide Mr. Louis's address. Ms. Meusel alleges that Mr. St. Clair did not inform her that he was obtaining a citation and trying to serve Petitioner with that citation. Mr. St. Clair responds to these allegations by pointing out that Ms. Meusel had not yet filed a Notice of Appearance or Authorization to Appear in the probate proceeding. After failing to get the requested information from Mr. St. Clair, Ms. Meusel informed her client that he should retain an attorney in New York located closer to the courthouse to represent him in this matter.

Mr. St. Clair alleges that he mailed a citation to an address in New Jersey believed to be that of Mr. Louis; the envelope was returned indicating "Address is correct/Recipient is no longer at this address." This response led Mr. St. Clair to believe the address was correct and that petitioner lived there at one point. Petitioner, however, denies ever residing at the New Jersey address or ever receiving a citation.

Mr. Benoit then indicated to his attorney that Mr. Louis returned to Haiti and allegedly located an address for him in Haiti through the help of family and friends. Mr. St. Clair then secured the issuance of a Supplemental Citation and mailed it to the address in Haiti believed to be Mr. Louis's new residence. Mr. St. Clair affirmed that "upon information and belief, Mr. Louis is a citizen of the Country of Haiti, was in the United States for a limited period of time and has since returned to his native land with no indication of when or if he will return." The address to which Mr. St. Clair mailed the supplemental citation was not, according to Mr. Louis, his address, nor did he reside at that address at any time. Mr. Louis alleges to have resided at his brother's house located on Salem Road in Union, New Jersey, at all times since his wife's death. Mr. St. Clair alleges that service on Mr. Louis was completed pursuant to SCPA 307 and CPLR sections 308, 312-a, 314. Mr. Louis alleges that he never received proper notice of the probate proceeding and implies that Mr. Benoit exercised undue influence in connection with the instrument which was admitted to probate.

This constitutes the order of the court.

EDWARD W. McCARTY III