Surrogate Nora Anderson

 

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Proponent moved to strike the SCPA 1404 discovery demand respondent Alibayof, decedent’s spouse, made arguing lack of standing in this contested probate proceeding. Decedent was survived by two children from Alibayof, and proponent claimed decedent and Alibayof were legally divorced under Israeli law at the time of her death. Alibayof claimed decedent received a “Get,”—a divorce under religious law only. It was undisputed the parties executed a separation agreement in New York, and petitioned for probate of a 2006 will in which he was primary beneficiary, and nominated executor. Movant, and decedent’s two sisters offered a 2011 instrument for probate that nominated them as fiduciaries, and established two trusts for each child, mentioning Alibayof, as an “ex-husband,” in relation to guardianship of the children if she predeceased. Movant argued Alibayof waived his right to file probate objections, and his right to discovery under the settlement agreement. The court found even if Alibayof remained a beneficiary under the 2006 will, he unequivocally gave up his right to object to the 2011 instrument—leaving him a beneficiary of an earlier will with no ability to challenge the later one, thus, without a basis to pursue §1404 discovery here. Proponent’s motion was granted.

Surrogate Nora Anderson

 

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Proponent moved to strike the SCPA 1404 discovery demand respondent Alibayof, decedent’s spouse, made arguing lack of standing in this contested probate proceeding. Decedent was survived by two children from Alibayof, and proponent claimed decedent and Alibayof were legally divorced under Israeli law at the time of her death. Alibayof claimed decedent received a “Get,”—a divorce under religious law only. It was undisputed the parties executed a separation agreement in New York , and petitioned for probate of a 2006 will in which he was primary beneficiary, and nominated executor. Movant, and decedent’s two sisters offered a 2011 instrument for probate that nominated them as fiduciaries, and established two trusts for each child, mentioning Alibayof, as an “ex-husband,” in relation to guardianship of the children if she predeceased. Movant argued Alibayof waived his right to file probate objections, and his right to discovery under the settlement agreement. The court found even if Alibayof remained a beneficiary under the 2006 will, he unequivocally gave up his right to object to the 2011 instrument—leaving him a beneficiary of an earlier will with no ability to challenge the later one, thus, without a basis to pursue §1404 discovery here. Proponent’s motion was granted.