Surrogate Nelida Malave-Gonzalez
The temporary administrator cross-petitioned for a decree admitting the propounded instrument to probate and sought withdrawal of the portion of the application which sought to probate a codicil. Sole nominated executor Perro opposed the withdrawal of the branch of the petition seeking to probate the codicil, yet failed to file formal objections. The court noted the codicil was not attorney-supervised, but had a self-proving affidavit, and named Krant and Perro as co-executors. Petitioner’s counsel noted the codicil contained a typographical error in referring to an instrument dated July 1, 1994, instead of Sept. 13, 1994. Perro’s counsel affirmed the codicil appeared to be signed by decedent and witnessed by three witnesses, thus conformed with Estates Powers and Trusts Law §3-2.1 requirements regarding due execution of testamentary instruments. The court found the September 1994 will was executed in accordance with statutory formalities, noting it did not credit opposition submitted by Perro, a replaced fiduciary whose only stake in the estate was as a designated fiduciary. Thus, as the codicil only nominated the two now-removed fiduciaries, and had no other dispositive provisions, the request to withdraw the application seeking to probate the codicil was granted.
