Matter of Goldman

Surrogate's Court, Nassau County

Decided on March 18, 2026

File No. 2023-1833/A

David P. Sullivan, J.

The following papers were considered in the preparation of this decision:

Notice of Motion 1

Affirmations in Support with Exhibits 2

Affirmation in Opposition with Exhibits 3

Affidavit of Objectant 4

Copy of Last Will and Testament 5

Amended Petition to Probate Copy of Will 6

Objections 7

Affidavits of Attesting Witnesses 8

Affidavit of Due Diligence 9

Memoranda of Law 10

Application to Dispense 11

Renunciation 12

Before the court in this probate proceeding is a motion by Ronald Goldman (petitioner), the nominated successor executor under the last will and testament of Renee Goldman (decedent), for an order pursuant to CPLR 3103 granting a protective order with respect to the depositions of Ronald A. Goldman and Selma Goldman and suspending all discovery pending the court's decision on this motion. An affirmation in opposition has been filed.

Also before the court is a proceeding to probate a copy of the last will and testament dated September 14, 1986. The decedent died on April 12, 2023, survived by her brother, Howard R. Goldman, the nominated executor. The decedent nominated her nephew, Ronald A. Goldman, as successor executor. Howard R. Goldman subsequently filed a renunciation and consented to the appointment of Ronald A. Goldman as executor.

The copy of the decedent's will provides for her residuary estate to be divided equally among three of her nieces and nephew (children of Howard R. Goldman), Nancy J. Goldman a/k/a Nancy Greene, Madeline Goldman and Ronald A. Goldman. Nancy Greene (objectant) filed objections; however, the objections relate solely to the nomination of the petitioner as executor and not to the validity of the copy of the will. By affidavit, the objectant joined in and supports the admission of the copy of the decedent's will to probate. The question of whether the petitioner has proven that a copy of the will can be admitted to probate pursuant to SCPA 1407 has not been decided.

In order to have a copy of a lost will admitted to probate, the petitioner must satisfy the requirements of SCPA 1407, which provides that:

"A lost or destroyed will may be admitted to probate only if

1. It is established that the will has not been revoked, and

2. Execution of the will is proved in the manner required for the probate of an existing will, and

3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete."

The copy of the decedent's will contains an attestation clause and the signatures of three witnesses, Howard R. Goldman, Selma Goldman and Stanley Goldman. Howard R. Goldman and Selma Goldman signed affidavits of attesting witnesses wherein they attested that the will was executed in compliance with the statutory requirements and that they saw the decedent sign the will and saw each other sign the will as witnesses. There is also an application to dispense with the testimony of Stanley Goldman, the third attesting witness, as he died in September of 1988.

Considering the requirement that the execution of the will be proved in the manner required for probate of an existing will, the court is satisfied that petitioner has established that the will was executed in compliance with EPTL 3-2.1. The will also contains an attestation clause, which raises a presumption of its validity (Matter of Cafferky, 38 Misc 3d 1219 [A] [Sur Ct, Bronx County 2013]). The file also contains affidavits of attesting witnesses from Howard R. [*2]Goldman and Selma Goldman, which provide further support for the satisfaction of the requirements of EPTL 3-2.1. Based on all of the foregoing, the court is satisfied that the will was executed in accordance with all statutory formalities.

As to revocation, where a will known to have been in the possession of the testator cannot be found after the testator's death, the law presumes that the testator destroyed the will with the intention of revoking it (Matter of Winters, 84 AD3d 1388 [2d Dept 2011]). The proponent has the burden to overcome the presumption of revocation by proving that the will was not revoked during the testator's lifetime (Matter of Fox, 9 NY2d 400 [1961]; Matter of Marotta, 137 AD3d 787 [2d Dept 2016]). The presumption can be overcome, but the standard of proof is clear and convincing evidence (Matter of Rosner, NYLJ, Dec. 10, 2015 at 22, col 4 [Sur Ct, New York County]).

Selma Goldman, the decedent's sister-in-law, who is neither a beneficiary nor a distributee, filed an affidavit of due diligence in which she describes her efforts to locate the original will of the decedent. According to Ms. Goldman, the decedent lived by herself in an apartment in Brooklyn for many years. The decedent retained numerous possessions and the family made efforts to clean the apartment but eventually hired a cleaning service to clean out the apartment. Ms. Goldman reports as to her numerous efforts to locate the original will but believes that it was most probably discarded. Ms. Goldman also states that her husband, Howard R. Goldman, was the attorney who drafted his sister's will. Ms. Goldman worked in her husband's office and reports that the office only retained an original will if the client wanted the office to keep it. She also states that if the decedent had wanted to change her will, she would have asked Ms. Goldman's husband, the decedent's brother, to prepare the new will.

Under the circumstances as set forth herein, the court finds that petitioner has overcome the presumption that the decedent revoked her will. Finally, all of the provisions of the will were clearly and distinctly proven by the copy of the will offered for probate.

The petition to admit the copy of the decedent's will dated September 14, 1986 to probate is GRANTED. The application to issue letters testamentary to the petitioner is DENIED as premature as there are objections filed regarding petitioner's eligibility to serve as a fiduciary.

The petitioner also moves for a protective order to stay his deposition and the deposition of the decedent's sister-in-law, Selma Goldman, in connection with the objectant's claim that the petitioner is not fit to act as executor. Specifically, objectant alleges that the petitioner has a conflict of interest.

Disclosure in New York civil actions is guided by the principle of "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101[a]). The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968] [internal quotation marks omitted]; see Tower Ins. Co. of NY v Murello, 68 AD3d 977 [2d Dept 2009]). The Court of Appeals' interpretation of "material and necessary" in Allen has been understood "to mean nothing more or less than 'relevant' " (Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3101:5).

Trial courts have "broad power to regulate discovery to prevent abuse" (Barouh Eaton Allen Corp. v International Bus. Machs. Corp., 76 AD2d 873, 874 [2d Dept 1980]). CPLR 3103[a] provides that "[t]he court may at any time on its own initiative, or on motion of any [*3]party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." Generally, the party seeking a protective order bears the burden of demonstrating entitlement to such order (Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452 [2d Dept 1994]). The objectant argues that the petitioner is not fit to serve as a fiduciary based upon alleged past financial issues and financial dependence on his mother, Selma, which she argues creates a conflict of interest. As to the financial issues, the dishonesty contemplated in SCPA 702 means dishonesty in money matters from which "a reasonable apprehension may be entertained that the funds would not be safe in the hands of the executor" (2 Warren's Heaton on Surrogate's Court Practice, 33.02[6[[b], p 33-21[7th ed]; Matter of Flood, 236 NY 408, 411 [1923]; Matter of Martin, 16 AD2d 807 [2d Dept 1962]). The petitioner's motion for a protective order to stay the deposition of the petitioner is DENIED as the allegations concerning petitioner's past financial issues are relevant to his qualification as a fiduciary.

With respect to the branch of the motion to stay Selma's deposition, the court notes that SCPA 702(8) recognizes that, under certain circumstances, a fiduciary may be unable to carry out his duties because of a conflict of interest. Objectant's claim, however, is based upon an anticipated and speculative, rather than actual, conflict of interest that the petitioner will fail to pursue an action against his mother for alleged misuse of the power of attorney due to his financial dependence upon his mother. Selma's alleged misuse of a power of attorney is not relevant to the issue of the petitioner's qualification. Accordingly, the petitioner's motion for a protective order to stay the deposition of Selma Goldman is GRANTED as there is no issue before the court that would require her testimony at this point.

This constitutes the decision and order of the court.

Dated: March 18, 2026

Mineola, New York

E N T E R

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court