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Petitioner Sufficiently Alleged She Is a Nonmarital Child of the Decedent—Probate Decree Properly Vacated

The Second Department determined Surrogate’s Court properly vacated a probate decree based upon petitioner’s assertion she is a nonmarital child of the decedent:

Here, the petitioner … sufficiently alleged that the decedent … “openly and notoriously acknowledged [her] as his own [child]” and, thus, she may be entitled to inherit from him (EPTL 4-1.2[a][2][C][ii]…). Accordingly, the Surrogate’s Court properly denied the executor’s motion pursuant to CPLR 3211(a) to dismiss the petition.

” Because vacatur disrupts the orderly process of administration and creates a continual aura of uncertainty and nonfinality, a probate decree will be vacated only in extraordinary circumstances'” … . “However, it is equally true that the Court should also be slow to say that an injustice may not be corrected'” … . “A petitioner seeking to vacate a probate decree must establish with some degree of probability that his claim is well founded, and that, if afforded an opportunity, he will be able to substantiate it'” … . An application to vacate a probate decree is committed to the discretion of the court … . Here, the petitioner showed with some degree of probability that she is a nonmarital child of the decedent and that, if afforded an opportunity, she will be able to substantiate her claim. Matter of Saginario, 2014 NY Slip Op 05192, 2nd Dept 7-9-14

 

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