Matter of Taylor

Surrogate's Court, Erie County

Decided on April 3, 2026

File No. 2022-1741

Acea M. Mosey, S.

Richard G. Taylor [hereafter, decedent] died on January 17, 2022, at 76 years of age in Buffalo, New York. At the time of his death, decedent was married, survived by his spouse of some 40 years, Joyce Taylor [hereafter, Joyce], and by a son, William Taylor [hereafter, William].

There are two separate and distinct matters presently before this Court. First, on April 26, 2022, Joyce filed a petition for probate of decedent's Last Will and Testament, dated November 14, 2019. William opposes probate of that Will. Second, on March 5, 2025, William filed a proceeding regarding the Richard Taylor 2018 Irrevocable Trust, dated June 29, 2018 [hereafter, the 2018 trust]. Joyce seeks dismissal of that proceeding.

It is William's position that both the probate and the 2018 trust proceedings are inextricably linked to one another; and, thus, the papers filed in each proceeding, and the arguments made within them, overlap significantly. Joyce contends that the two proceedings are legally and functionally separate and distinct; and, with respect to the 2018 trust proceedings, [*2]she says that this Court should not entertain the matter.

Due to the complicated procedural history, and the asserted connection between these matters, a brief overview of the facts and timeline of these proceedings is necessary.

(A)

(i)

Probate Proceeding

Articles Third and Fourth of decedent's Will leave all of his personal property and the residuary estate outright to his surviving spouse, Joyce.

Article Fifth of decedent's Will provides as follows:

"FIFTH: In the event my spouse, JOYCE TAYLOR, shall have predeceased me, then:

A. I hereby exercise the Special Power of Appointment granted to me in Section 3.1.3 of The Richard Taylor 2018 Irrevocable Trust dated June 29, 2018 by and among John J. Edwards as Grantor, Richard Taylor as Family Trustee, James C. Muffoletto CPA as Independent Trustee and Premier Trust, Inc. as Administrative Trustee (the "Taylor Trust") as follows:

All of the shares of Austin Air Systems Limited and Membership Interests of Scrap Property Associates, L.L.C., titled in the name of the Taylor Trust or the Trustees of the Taylor Trust, shall be paid over and distributed outright to LAUREN MCMILLAN, the President of Austin Air Systems Limited, if living.

B. All the rest, residue, and remainder of the property which I may own at the time of my death, real and personal, I bequeath and devise to the Trustees of the Taylor Revocable Trust created under a Trust instrument dated December 13, 2013, by myself and my spouse, JOYCE TAYLOR, as Grantors and myself and my spouse, JOYCE TAYLOR, as Trustees, as amended, to be held, administered and distributed pursuant to the provisions of the Trust as part of the Trust.

In the event the Trust shall not be in existence on the date of the last to die of my spouse and myself, then all the rest residue and remainder of the property which I may own at the time of my death, real and personal, shall be paid over and distributed outright to LAUREN MCMILLAN" (emphasis added).

Joyce filed her petition to probate decedent's Will on April 26, 2022. Preliminary letters testamentary were issued to Joyce on July 22, 2022, and a citation was issued to William. At the citation return date, jurisdiction was obtained and an SCPA 1404 hearing was scheduled to take place on October 6, 2022. Over the course of approximately the next 26 months, the SCPA 1404 hearing was adjourned and rescheduled six (6) times.

At a status appearance on October 3, 2024, the SCPA 1404 hearing was scheduled for December 13, 2024, over the objections of William's counsel who stated that there was still outstanding discovery needed before the hearing could take place. As the hearing date approached, William once again requested an adjournment.

Based on correspondence sent on December 9, 2024 by Stephen Silverstein, Esq. [hereafter, Silverstein], the only discovery which remained in dispute between the parties was an unredacted copy of the 2018 trust, which Joyce contends is not relevant to the admissibility of decedent's Will. This Court declined to adjourn the SCPA 1404 hearing any further and instructed counsel to advise whether or not they intended to proceed with SCPA 1404 hearing as [*3]scheduled.

On December 12, 2024, Silverstein sent the following e-mail to counsel for the estate and to this Court:

"My firm is counsel for William Taylor. Gross Shuman is counsel for within estate. A1404 hearing is scheduled for Friday, December 13 at 1:00 p.m. We have decided not to proceed with the 1404 hearing. Please remove this hearing from the Court's calendar. Thank you for your consideration" (emphasis added).

William then filed verified objections to the probate of decedent's Will on February 14, 2025, alleging that the Will was not duly executed, that decedent was not of sound mind when the Will was executed, and that the Will was procured by fraud and undue influence. Joyce filed her reply, denying each objection, and she simultaneously filed a motion for summary judgment seeking dismissal of William's objections.

Due to William's position that the 2018 trust and probate proceedings are interrelated, this Court held decision on Joyce's summary judgment motion in abeyance until a decision was made regarding whether or not this Court would entertain the 2018 trust proceeding.

(ii)

Inter Vivos Trust Proceeding

On June 28, 2024, William filed an "Inter Vivos Trust Petition," which was initially filed in the form of a Summons and Complaint. The court advised counsel that the matter was not in proper form and could not be acted upon. The same document was filed again on July 24, 2024, still in improper form, and again no action was taken on it within the court. William's counsel later requested that these two submissions be withdrawn from the record, as there was a concern that they could have possibly triggered the in terrorem clause of the 2018 trust.

On March 5, 2025, a verified petition requesting that this Court exercise jurisdiction over the 2018 trust was filed by William. A citation returnable on June 26, 2025 was issued to Joyce, the nominated executor and the beneficiary under the 2018 trust. Lauren McMillan [hereafter, Lauren], the nominated successor estate executor and possible beneficiary under the 2018 trust, James C. Muffoletto, CPA [hereafter, Muffoletto], the independent trustee under the trust, and Premier Trust, Inc., the administrative trustee of the trust, were also citedFN1. Prior to the return date, Joyce filed objections to the 2018 trust petition, contending that this Court lacks both subject matter jurisdiction and personal jurisdiction over the 2018 trust. William filed his reply, arguing that there are "numerous connections between the estate of Richard Taylor . . . and the Richard Taylor 2018 Irrevocable Trust" which would justify this Court exercising jurisdiction over it.

At a status appearance on August 14, 2025, I instructed all parties to brief the issue of jurisdiction over the 2018 trust and to submit their papers on or before September 5, 2025. Silverstein subsequently requested that he be allowed to submit a final reply, and this Court set January 16, 2026 as the final date for any submissions in this proceeding.

(B)

As both the probate and 2018 trust matters have now been fully briefed and submitted, I hereby find and decide as follows.

(i)

The 2018 Trust Petition

" 'The Surrogate's Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent, or necessary to do justice in a particular case to which its jurisdiction extends' " (Matter of Tarlow, 111 AD3d 751, 752 [2013], quoting Matter of Stortecky v. Mazzone, 85 NY2d 518, 524 [1995]). "[T]he power of the Surrogate's Court relates to matters affecting estates of decedents and not to independent matters involving controversies between living persons" (Matter of Lainez, 79 AD2d 78,80 [1981], emphasis added, aff'd 55 NY2d 657 [1981]). "[F]or the Surrogate's Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of this estate" (Matter of Piccione, 57 NY2d 278, 288 [1982][internal quotation omitted]).

The 2018 trust is an irrevocable Nevada beneficiary trust, and one of the provisions of the 2018 trust is that it be governed and construed under the laws of the State of Nevada.

William argues that decedent's Will provides enough connection between the 2018 trust and decedent's estate, coupled with a few other "points of contact", to provide a sufficient basis for this Court to exercise jurisdiction over the 2018 trust.

William urges that, because Article Fifth of decedent's Will provides for the exercise of a special power of appointment under the 2018 trust, the 2018 trust and decedent's Will are inseparable from one another. However, Article Fifth of decedent's Will applies if, but only if, decedent's wife Joyce had pre-deceased him. Because Joyce is still alive, and is actively petitioning to have decedent's Will probated, this provision of the Will is ultimately irrelevant. And, because Joyce is living, the special power of appointment under the 2018 trust cannot be exercised under decedent's Will.

I find that the 2018 trust is an irrevocable Nevada beneficiary trust which is governed and construed under the laws of Nevada, not under the laws of New York. I further note that there is a significant dispute between the parties as to what the (apparent) governing law in Nevada requires with respect to any interest William may have under the trust. See, for example, the dispute between Joyce and William as to the meaning and implications of Nedder v. Deluca, 138 Nev. 836, 521 P.3d 1190 [dec. December 22, 2022], a decision from the Nevada Supreme Court regarding rights under a trust. Because Nevada law applies to the interpretation and operation of this 2018 trust, it is far better to have those legal issues adjudicated in the forum most familiar with the requirements of Nevada law, that is, in Nevada.

Because I find no proper basis to entertain William's petition in this New York court, I hereby dismiss William's inter vivos trust petition in its entirety, without prejudice to William bringing whatever petition in Nevada concerning the 2018 trust that William may wish to pursue.

(ii)

Summary Judgment Motion in Joyce's Probate Petition

I turn next to the motion for summary judgment in the probate proceeding.

On a motion for summary judgment, the moving party must make a prima facie showing [*4]of entitlement to judgment as a matter of law (Matter of Cameron, 126 AD3d 1167 [2015]). If such showing is made, the burden then shifts to the parties opposing the motion to "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also, Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see, e.g., Nellenback v. Madison County, 44 NY3d 329, 334 [2025]).

In order for this Court to grant summary judgment, "it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 NY 118 [1950]). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 116 NY2d 857 [1952]), or where the issue is 'arguable'(Barrett v. Jacobs, 255 NY 520 [1931])" (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Furthermore, CPLR 3212(f) provides that, where it appears "that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit . . . disclosure to be had and may make such other order as may be just" (emphasis added). In M&T Bank v. HR Staffing Solutions, Inc., 106 AD3d 1498, 1499 [2013], our Appellate Division explained the proper application of the statute:

"Contrary to defendant's contention, the motion was not premature. 'Defendant failed to demonstrate that facts essential to oppose the motion were in plaintiff's exclusive knowledge and possession and could be obtained by discovery' (Franklin v. Dormitory Auth. Of State of NY, 291 AD2d 854; see CPLR 3212(f); Rowland v. Wilmorite, Inc., 68 AD3d 1770, 1770-1771; Brummer v. Barnes Firm, P.C., 56 AD3d 1177, 1179. It is well settled that the '[m]ere hope that somehow the [defendant] will uncover evidence that will prove a [defense] provides no basis pursuant to CPLR 3212(f) for postponing a determination of a summary judgment motion' (Wright v. Shapiro, 16 AD3d 1042, 1043 [internal quotation marks omitted]; see Rowland, 68 AD3d 1771; Brummer, 56 AD3d at 1179)" (emphasis added).

William filed objections to probate of decedent's Will on February 14, 2025. William's objections contain four (4) general statements and do not include factual assertions to support the conclusory allegations.

William argues that Joyce's motion for summary judgment should be denied as premature because, so William alleges, it was "made with no discovery or opportunity for discovery." William does not particularize this contention further.

The SCPA 1404 hearing in this matter had been scheduled and adjourned six (6) times over a two-year period. The first SCPA 1404 hearing was scheduled to take place on October 6, 2022. Although William says he had no discovery opportunity, the record belies this assertion. Discovery was on-going for over two years, and the only apparent item in William's discovery demands which has not been provided and thereafter brought to the attention of this Court is receipt by William of a fully unredacted copy of the 2018 trust.

On December 9, 2024, this Court conducted a brief telephone conference with the parties and advised that they were to convey in writing their grounds for their respective positions regarding the adjournment of the SCPA 1404 hearing. After review of those submissions, this Court determined and notified the parties that the remaining outstanding discovery issue was not sufficient to delay the SCPA 1404 hearing any longer.

William's counsel then advised this Court in writing that William intended to forego an SCPA 1404 hearing in this matter. William now argues that he is being denied the opportunity to conduct an SCPA 1404 hearing, an assertion which is patently incorrect.

Decedent died in January of 2022, from renal failure which was a consequence of his battle with prostate cancer. Decedent's Will was executed over two years prior to his death and is unsuspicious in both its physical condition and its contents. Under Articles Third and Fourth of the Will, decedent leaves all his personal property and his residuary estate to his surviving spouse, Joyce. Further, decedent's Will was drafted and witnessed by attorneys -- Jonathan Schechter, Esq., and Carolyn DeVaughn, Esq. -- and the contemporaneous self-proving affidavit of the attesting witnesses states that the Will was executed in accordance with the provisions of EPTL 3-2.1.

There are affidavits before me from attorney Schechter and DeVaughn detailing the way this Will was set up according to decedent's directions and thereafter executed by him and witnessed by them. There is no proof, or even a suggestion, that decedent lacked testamentary capacity when he executed this Will, or that the Will was the product of any undue influence.

SCPA 1408(1) provides that "[b]efore 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 the execution." SCPA 1408(2) provides that "[i]f it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property" (emphasis added).

Here, I find that decedent's Last Will and Testament dated November 14, 2019, is genuine and valid in every respect, and I direct that it be admitted to probate and that full letters testamentary shall issue forthwith.

This decision shall constitute the Order and Decree of this Court, and no other or further order or decree shall be required.

DATED: April 3, 2026

BUFFALO, NEW YORK

Hon. Acea M. Mosey

Erie County Surrogate Court Judge