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THE VALIDITY OF THE WILL SHOULD NOT HAVE BEEN DETERMINED AT THE STAGE WHEN THE PETITION FOR PROBATE WAS PRESENTED FOR FILING (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined that the validity of the will should not have been determined at the stage when the petition to probate the will was presented for filing:

The question presented to Surrogate’s Court was not whether the purported will should be admitted to probate, but only whether the petition seeking probate of the subject will should have been accepted for filing. It appears that, in presenting their respective positions regarding the motion, the parties addressed, in detail, the validity of the will and whether it was properly executed and, in turn, Surrogate’s Court’s well-intentioned decision addressed those arguments and denied probate. That decision was premature (see SCPA 304, 1402 [1], [2]; 22 NYCRR 207.16 … ). There is a difference between accepting a probate petition for filing and admitting a will to probate. The former merely commences the legal proceeding to determine the validity of a purported will; the latter is but one possible outcome of that process. Here, Surrogate’s Court should have granted petitioner’s motion, directed the Surrogate’s Court Clerk to accept the petition and accompanying papers for filing, issued the appropriate citations and proceeded according to the procedures set forth in SCPA article 14. Matter of Noichl, 2019 NY Slip Op 07468, Third Dept 10-17-19

 

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