| Matter of Shapiro |
| 2012 NY Slip Op 07936 [100 AD3d 1242] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Sylvia Shapiro, Deceased. SheldonShapiro, Respondent; Gail Bass, Appellant. |
—[*1] Jacobowitz & Gubits, LLP, Walden (David Gandin of counsel), for respondent.
Lahtinen, J. Appeal from an order of the Surrogate's Court of Sullivan County (McGuire, S.),entered January 10, 2012, which, among other things, denied respondent's motion to dismiss theprobate petition.
Decedent's two children have been involved in extensive litigation over her reportedlymodest estate since her death in April 2008. A document purporting to be her 1994 will waspropounded for probate in August 2008 by petitioner, her son, who was named executor and solebeneficiary. Respondent, decedent's daughter, who allegedly had been estranged from decedentfor many years and received nothing under the will, filed objections, moved to dismiss theprobate petition and filed a petition seeking letters of administration. In November 2010, aftervarious proceedings, including an earlier appeal to this Court (Matter of Shapiro, 65 AD3d 790[2009]), Surrogate's Court (Ledina, S.) granted respondent's motion to dismiss the probatepetition because the will propounded by petitioner was determined to be a copy rather than theoriginal.
In early January 2011, petitioner cross-petitioned to be appointed administrator of decedent'sestate. Later that same month, petitioner's then-attorney, Eric Groper, purportedly discovered theoriginal 1994 will among papers previously provided by petitioner. The original [*2]will was filed with Surrogate's Court, but not offered for probate.At a conference on the pending petitions for letters of administration, Groper stated thatpetitioner had decided not to offer the recently discovered original will for probate and to,instead, proceed under the pending petitions for letters of administration. In June 2011,Surrogate's Court (McGuire, S.) appointed respondent as administrator. Petitioner retained newcounsel and, in August 2011, he filed a second probate petition in which he sought to propoundthe recently discovered original will. Respondent moved to dismiss the probate petition.Surrogate's Court denied respondent's motion and she now appeals.
We affirm. Determinations about objections and whether to admit a will to probate aregenerally "within the sound discretion of Surrogate's Court, and the court's decision will beupheld absent a showing of an abuse of discretion" (Matter of Colverd, 52 AD3d 971, 972 [2008]; see Matter of American Comm. forWeizmann Inst. of Science v Dunn, 10 NY3d 82, 98 [2008]). Moreover, the primaryobjective when there is a duly executed will is to ensure that the testator's intent is honored (see Matter of Fischer, 24 AD3d858, 860 [2005]; SCPA 1408 [2]; 41 NY Jur 2d, Decedent's Estates § 1627). Althoughstipulations made by counsel are not lightly disregarded, petitioner acted expeditiously andasserted that Groper did not represent his interest since he had a conflict of interest when hemade the statement regarding petitioner's intentions (see Matter of Graham, 238 AD2d682, 684-685 [1997]). Moreover, as noted by Surrogate's Court, it was merely denying themotion to dismiss the probate petition, and objections could still be filed to the will. In light of allthe circumstances and given the overriding objective to honor a testator's intent, we areunpersuaded that Surrogate's Court abused its discretion. The remaining arguments have beenconsidered and are unavailing.
Mercure, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order isaffirmed, with costs.