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In re Estate of Pedersen

Surrogate's Court, Oneida County

December 27, 2017

In the Matter of the Estate of Albin Pedersen.

          James S. Rizzo, Esq., Hilton Estate & Elder Law, LLC for the movant.

          Leighton R. Burns, Esq., Kernan & Kernan, P.C. for the proponent.

          Louis P. Gigliotti, J.

         Albin 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.

         Erik 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.

         On 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.

         On July 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 particular motion.


         SCPA § 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.

         The 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 Court's jurisdiction.

         Caselaw 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).

         The 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).

         These 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).

         Cited 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 ...

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