Surogate Nora Anderson

Proponent of a testamentary instrument sought to discontinue the probate proceeding. Cross-movants sought fees, costs and sanctions against proponent, her counsel and the sole beneficiary of the propounded instrument for their alleged bad faith in beginning the proceeding. Souza was presumed to have died intestate in 2002, yet eight years after Souza’s death, his son, Patrick, came forward with a document purporting to be Souza’s will, executed in India, and naming Patrick as the sole beneficiary. Proponent cited her inability to “satisfy the statutory elements” of proving the will through the attesting witnesses, referring to problems in the Surrogate’s Court Procedure Act §1404 examinations. Cross-movants alleged the propounded instrument constituted a fraud perpetrated by Patrick and such fraud should have been obvious to proponent and her attorney. The court found insufficient evidence of bad faith in the record warranting an award of costs or legal fees against Patrick or proponent in connection with the probate proceeding. It stated it was not apparent how Patrick’s delay in coming forward with the will benefitted him or how it was indicative of any fraud on his part. Thus, cross-movants’ petition was denied.