S. Rizzo, Esq., Hilton Estate & Elder Law, LLC for the
Leighton R. Burns, Esq., Kernan & Kernan, P.C. for the
P. Gigliotti, J.
Pedersen ("Decedent") died a resident of Oneida
County, New York on June 19, 2015. He was survived by his
wife, Dawn, and two children by his first marriage, Erik and
Ole Steen. A Last Will and Testament signed by Decedent on
April 22, 2015 was offered for probate by the nominated
executor, Paul V. Noyes. Said Will included specific devises
of real property, personal property and cash to
Decedent's wife, explicitly excluded Erik from an
inheritance, and directed the residue be placed in trust for
the benefit of Ole Steen, subject to specific payout
instructions and with any remaining funds to pass to St. Jude
Children's Research Hospital in Memphis, Tennessee.
and Ole Steen filed objections to the Will on October 14,
2015. A jury trial commenced on January 9, 2017. On January
12, 2017, the jury by a 5-1 vote answered "no" to
the sole question submitted for consideration: "At the
time of the execution of the Will of April 22, 2015, was
Albin Pedersen of sound mind and did he possess the requisite
testamentary capacity to make a Last Will and Testament
disposing of his property?" On January 27, 2017, Mr.
Noyes filed a motion to dismiss the objections filed by Erik
and Ole Steen, set aside the verdict on the grounds that
insufficient evidence exists to support the jury verdict, and
admit the proffered Will to probate. Before responding papers
could be filed, Erik died unexpectedly at his home in
Illinois on February 3, 2017.
March 24, 2017, counsel for Erik and Ole Steen filed an
affirmation and memorandum of law in opposition to the
pending motion. By letter dated March 31, 2017, the Principal
Court Attorney advised the parties that proceedings on the
motion could not be had until a personal representative was
appointed for Erik's estate and a substitution of parties
was made pursuant to CPLR § 1015.
24, 2017, Kirsten L. Whalen-Pedersen, daughter of Erik and of
his estate, filed a motion for substitution of parties.
Included with her papers was an Order Appointing
Representative of Decedent's Estate - Intestate, issued
by the Circuit Court of the Twenty-Second Judicial Circuit,
McHenry County, Illinois and dated April 13, 2017. By letter
dated July 31, 2017, the Principal Court Attorney outlined a
briefing schedule for the attorneys, indicated the motion
would be taken on submission without oral argument, and
raised the question whether Ms. Whalen-Pedersen first needed
to apply for ancillary letters in New York. Her attorney
responded to this inquiry by letter dated August 13, 2017.
Mr. Noyes did not file any papers in connection with this
§ 1601 sets forth the legislative purpose of ancillary
administration of estates foreign to New York:
"[A]ncillary administration shall be granted in this
state only when there is an actual administration in the
domiciliary jurisdiction." Since Erik died a resident of
Illinois and his daughter was appointed Administrator by an
Illinois court, she qualifies for appointment as an ancillary
administrator in New York. (See SCPA § 1607).
Surrogate's Court has jurisdiction over estates of
non-domiciliaries who leave property in New York.
(See SCPA § 206(1)). "Property" is
defined in SCPA § 103(44) as "[a]nything that may
be the subject of ownership and is real or personal property,
or is a chose in action." Decedent died owning personal
and real property in Oneida County. The question therefore
pending before the Court is whether Erik, by virtue of the
jury verdict, is a person who left "property" in
New York at the time of his death and if so, whether
ancillary letters are required before his daughter can
proceed with her opposition to Mr. Noyes' motion.
Court first considers the procedural posture of this case.
The effect of the jury verdict, if upheld, is to invalidate
the April 22, 2015 Will signed by Decedent. How
Decedent's estate will thereafter be administered remains
unknown. The Court is aware of two other Wills signed by
Decedent prior to April 22, 2015, but neither Will has yet
been proffered for probate. Erik is a named beneficiary in
both of these earlier Wills and would stand to receive
one-half of the residue regardless which Will may be
admitted. Even if an argument were raised that Decedent
revoked these prior Wills on April 22, 2015, regardless of
the validity of the dispositive provisions of the Will signed
on that date, Erik is a distributee of his father's
estate and entitled to receive a portion thereof under the
New York intestacy laws. Clearly therefore, Erik's estate
has the potential to inherit from Decedent's estate were
Mr. Noyes' motion to be denied. On the other hand, if Mr.
Noyes' motion were granted and Decedent's April 22,
2105 Will were admitted to probate, Erik's estate would
have no such claim and would not be subject to this
on this issue is sparse. The Second Department in
Neuberger v. Hart, 266 AD 612, 615-16 [2d Dept
1943], identified particular circumstances when an exception
to the requirement for ancillary administration would be
permitted, such as seeking a claim in equity or ensuring the
ends of justice are served. The plaintiff estate in
Neuberger sought to recover upon an agreement made
affecting real property purchased in New York. The defendant
lived in New York as well. The Court concluded that ancillary
administration was required before the lawsuit could proceed
further since such administration "could very well
easily be had." (Id. at 616-17).
Second Department reached a similar conclusion in
Gruberger v. Titus, 16 A.D.2d 813');">16 A.D.2d 813 [2d Dept 1962]).
In this case however, the plaintiff sought to substitute the
appointed administrator of the deceased defendant's
estate. The appellate court would not permit such a
substitution without ancillary letters first being obtained.
(See id. at 814).
cases suggest Ms. Whalen-Pedersen should apply for ancillary
letters here in Oneida County Surrogate's Court before
substitution can occur. Cutting against this conclusion
however, is the decision in TAG 380, LLC v. Estate of
Ronson, 69 A.D.3d 471');">69 A.D.3d 471 [1st Dept 2010]. Here, the
plaintiff argued that the trial court erred in substituting
foreign executors who had not first obtained ancillary
letters. One of the defendants died after the trial court
dismissed all but one of plaintiff's claims and awarded
sanctions against plaintiff and its counsel, but before a
hearing could be held as to the amount of attorney's fees
to be paid his counsel. The executors reasoned that no such
letters were required since they were not seeking to sue in
New York and since the estate owned no property in New York.
The First Department agreed with such reasoning. Finding that
"representatives appointed in foreign countries must
obtain New York ancillary letters or other appointment only
to invoke jurisdiction and sue in New York, " the Court
held that "[a] defendant's motion for sanctions
based on frivolous conduct does not convert him or her into a
claimant or plaintiff for jurisdictional purposes."
(Id. at 474).
within TAG 380, LLC is Haines v. Cook Elec.
Co., 53 Misc.2d 178');">53 Misc.2d 178 [Sup Ct, NY County 1967]. The trial
court in that case permitted the substitution of a foreign
administrator for a deceased plaintiff, when said
administrator could not otherwise qualify for ancillary
letters. The court reasoned that since the case had been
"diligently prosecuted" prior to the
plaintiff's death, since the plaintiff's claims could
be time barred in other jurisdictions, and "defendant
has been defending the action all ...