Executor in Prior Will Denied Leave to File Objections to Probate

In Matter of Eshagian, __ A.D.3d __, __ N.Y.S.2d __, (2d Dep't 2008) the Second Department reversed an order of the Queens County Surrogate's Court and denied the application of an executor named in a prior will to file objections to probate. The Appellate Division held that the executor's conclusory and speculative allegations concerning decedent's lack of testamentary capacity and susceptibility to undue influence were insufficient to establish "good cause." Even though the application was supported by the affirmation of a neurologist, the Court noted that the expert never met the decedent, never examined or treated him and never spoke to the decedent's treating physician. The expert based his opinions on an examination of the decedent's medical records and on one conversation with a brother of the decedent, who was not even present when the challenged instrument was executed.

The Court further held that the executor's 's waiver of the commissions was insufficient, in and of itself, to establish that his proposed objections were prompted solely by the obligation to see that the decedent's wishes were not frustrated.