New York Law Journal

Cite as: Claire Friedlander, 2008-1081, NYLJ 1202538053305, at *1 (Surr., -
NY, Decided December 23, 2011) l
Surrogate Nora Anderson
Decided: December 23, 2011

Presently before the court are two motions to dismiss a cross-petition by decedent's cousin for probate of a will earlier propounded by decedent's alleged husband, the instrument's sole beneficiary and named executor, who eventually withdrew his petition with prejudice. The curious posture of the proceeding requires reference to the estate's complex procedural history, as outlined below.

Claire Friedlander died on March l5, 2008, at the age of 75, leaving an estate of approximately $30 million. Within weeks of her death, two competing applications were filed seeking probate - of two testamentary instrument, dated November 15, 2007 ("the probated will") and August 31, 2004, respectively. Under the 2007 instrument, decedent left most of her estate to a charitable trust she established on the day she executed the will ("Decedent's Foundation"). Under the 2004 instrument, decedent left all of her estate for certain specified charitable purposes, to be determined in her executor's sole discretion. By mid-September 2008, however, the proponents of the competing wills reached a settlement ("the 2008 Settlement"). On October 28, 2008, the court issued a decree admitting the 2007 will to probate, subject to the terms of the 2008 Settlement, under which a portion of the estate was to be devoted to the charitable purposes l specified in the earlier instrument.

However, on March 27, 2009 (approximately one year after decedent's death), a petition*2to I vacate the probate decree and to probate an instrument dated March 8, 2008, was filed in this court by an individual named Amore Silkovic. The propounded instrument identified Mr. Silkovic as decedent's husband and named him executor and sole beneficiary of the instrument's only dispositive provision'. In his affidavit of delay in the probate proceeding, Mr. Silkovic alleged that he had married decedent some six years earlier in Pennsylvania and explained that he failed to seek probate before that point because decedent's death left him too "devastated" to take such action sooner. '

A few months after commencing the new probate proceeding, Mr. Silkovic also began a i proceeding for leave to file a late notice of election against the probated will (as well as another proceeding for a stay of his eviction from an apartment owned by the estate). Three months after Mr. Silkovic filed his petition challenging the probated will and seeking in probate of the later will, decedent's cousin Arthur Friedlander was named in the probated will, but only in reference to the fact that he was being given no benefits thereunder "for reasons known to both [him and decedent]"2 According to Mr. Friedlander, the proponent of the probated will failed to serve him with process, thereby rendering the probate decree infirm. Mr. Friedlander's petition to vacate the probate decree thus rested on two fact-dependent - propositions: first, that he, as opposed to Mr. Silkovic, was decedent's next of kin and thus was*3a necessary party to the original probate proceeding as distributee; and second, contrary to the averments in an affidavit of service filed in the original probate proceeding, service had never been made on him. 

None of the foregoing applications could be determined without resolution of a threshold issue, i.e., whether Mr. Silkovic was or was not decedent's spouse at the time of her death (see Matter of Friedlander, NYLJ, Mar. 15, 2010, Sur Ct, New York County, at 27, col 6). Accordingly, discovery having been completed, an evidentiary hearing was scheduled for the spring of 2010. On the eve of such hearing, however, the parties to the pending proceedings relating to this estate reached a global settlement, which was reflected in a stipulation filed with the court. Under the stipulation, which was executed by, among others, Mr.Silkovic, Mr. Friedlander, and the executor ("the 2010 Stipulation"), Mr. Silkovic agreed to discontinue with prejudice his proceedings to stay his eviction and for probate of the 2008 will, and in pertinent part further, agreed that

"in the proceeding filed by him for permission to file a late notice of election in the Estate, wherein he stated that he was the surviving spouse, [he] hereby [discontinues] such proceeding with prejudice upon payment in full, in satisfaction of these claims as surviving spouse and
distributee, the sum of...$2.2 million. ..[and]...voluntarily releases and forever discharges [inter - alia] the Estate, [its fiduciary],...[and their predecessors and successors in interest]...from any and all. . . [of Mr. Silkovic's past or future]. . .claims. . .known or unknown. . . ."

The 2010 Stipulation thus appeared to leave the estate in the same posture that it occupied when the probate decree was issued, i.e., with the administration and disposition of decedent's estate conclusively governed by the provisions of the probated will. But some five months after*4the settlement was reached, Mr. Friedlander cross-petitioned for probate of the 2008 will, which is the pleading now at issue. In response, the executor under the probated will has filed a motion to dismiss, and Decedent's Foundation has filed a separate such motion as Well.

Both motions to dismiss stress the awkwardness of Mr. Friedlander's position as a proponent of the 2008 will. After all, he is neither a beneficiary of the instrument's only dispositive provision nor the fiduciary named in the instrument. Moreover, as an affiant in another proceeding in this court, he has sworn to the view that decedent lacked testamentary capacity even before 2008. Although such facts make his cross-petition something of an anomaly, they do not per se warrant a dismissal.

First, notwithstanding movants' suggestion to the contrary, the ineffectiveness of the lone dispositive provision in the 2008 will would not make probate a meaningless exercise. It is axiomatic that a case for probate is presented (assuming that the proponent has standing) u whenever a testamentary instrument reflects at least some intent on the testator's part that can be honored. In this case, testator expressed her intent to revoke all of her prior wills; she did not make that intent conditional on the effectiveness of the lone dispositive provision. Thus, the reasonable premise of the cross-petition is that, if testator's one dispositive provision were to fail or be rendered ineffective3, she preferred to have her estate disposed of in accordance with the statutory rules of intestacy rather than pursuant to the provisions of her prior wills. '

Second, the record presents no basis for judicial estoppel against Mr. Friedlander, since the l affidavit in question did not secure for him a successful outcome of a litigation (see*5Manhattan Ave. Dev. Corp. v. Meit, 224 AD2d 191, 192 [lst Dept 1996]). As for the 2010 Stipulation signed by Mr. Friedlander, it presents no legal bar to the cross-petition, since it contains no L provision under which Mr. Friedlander (in contrast to Mr. Silkovac) bound himself not to seek probate of the 2008 will. 

Third, despite movants' suggestions, Mr. Friedlander's claim as distributee is not concluded by the fact that the propounded instrument refers to Mr. Silkovic as decedent's husband, since such a reference does not have the force of law. Indeed, to date, there has been no adjudication determining decedent's marital status at her death.

On the other hand, Mr. Silkovic has not disavowed his assertions that he was married to decedent when she died. There is certainly no such disavowal in the 2010 Stipulation, under which Mr. Silkovic merely liquidated the financial value of his claims as surviving spouse. Moreover, assuming arguendo that Mr. Silkovic was decedent's husband at the time of her death, his waivers and releases in the Stipulation per se do not place Mr. Friedlander where he needs to be in order to establish standing to seek probate of the 2008 will. Movants have not offered, and the court's independent research does not disclose, authority for the proposition that a blood relative is automatically lifted to the position of distributee simply by force of waivers and releases by a spouse in relation to the other spouse's estate, whether in the context of a stipulation of the type involved here, or of a prenuptial or post-nuptial or separation agreement. Rather, the circumstances under which a husband or wife is disqualified as "surviving spouse," and replaced as a distributee by a blood relative, are narrowly prescribed by statute (EPTL 5-1.2), and this case does not present any such circumstance (see EPTL 5-1.2).

Accordingly, Mr. Friedlander has standing to prosecute his cross-petition in this*6proceeding only if it is detennined that Mr. Silkovic was not married to decedent when she died, that Mr. Friedlander is decedent's closest survivor, and that Mr. Friedlander is therefore decedent's distributee. The parties will be notified of the date and time of the evidentiary hearing to be held on the kinship issue.

Finally, one incidental issue requires discussion. The question has been raised as to whether Mr. H Silkovic must receive notice of the cross-petition in this proceeding. Logic indicates that the answer is no. If Mr. Silkovic is detennined to have been decedent's surviving spouse, and therefore decedent's sole distributee, Mr. Friedlander's cross-petition will be dismissed for lack of standing, making notice of the proceeding on Mr. Silkovic a moot point. If, instead, Mr. Friedlander, rather than Mr. Silkovic, is detennined to be decedent's sole distributee, notice to Mr. Silkovic would be unnecessary since, in view of the 2010 Stipulation, he would have no stake in the outcome of the proceeding. 

This decision constitutes the order of the court.

1. The provision in question, Article III of the will, with the heading "Residuary Estate," reads as follows: "I give and bequeath all tangible personal property owned by me at the time of my death, including, but not limited to, furniture, fumishings, lugs pictures, books, silver, linen, china, glassware, objects of art, wearing apparel, jewelry, boats and automobiles, together with all policies of insurance relating thereto, to my husband, Amore Silkovic." _

2. It is noted that the 2004 will also did not confer any benefit on Mr. Friedlander. '

3. It should be noted here that the breadth or narrowness of the lone dispositive provision — a subject of dispute in the parties' motion papers — is irrelevant, since, whatever its scope, the beneficiary of the provision has contractually surrendered any right to enforce it.

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