*1 Albin Pedersen (“Decedent”) died a resident of Oneida County, New York on June 19, 2015. He was survived by his wife, Dawn, and two children by his first marriage, Erik and Ole Steen. A Last Will and Testament signed by Decedent on April 22, 2015 was offered for probate by the nominated executor, Paul V. Noyes. Said Will included specific devises of real property, personal property and cash to Decedent’s wife, explicitly excluded Erik from an inheritance, and directed the residue be placed in trust for the benefit of Ole Steen, subject to*2
specific payout instructions and with any remaining funds to pass to St. Jude Children’s Research Hospital in Memphis, Tennessee.Erik and Ole Steen filed objections to the Will on October 14, 2015. A jury trial commenced on January 9, 2017. On January 12, 2017, the jury by a 5-1 vote answered “no” to the sole question submitted for consideration: “At the time of the execution of the Will of April 22, 2015, was Albin Pedersen of sound mind and did he possess the requisite testamentary capacity to make a Last Will and Testament disposing of his property?” On January 27, 2017, Mr. Noyes filed a motion to dismiss the objections filed by Erik and Ole Steen, set aside the verdict on the grounds that insufficient evidence exists to support the jury verdict, and admit the proffered Will to probate. Before responding papers could be filed, Erik died unexpectedly at his home in Illinois on February 3, 2017.On March 24, 2017, counsel for Erik and Ole Steen filed an affirmation and memorandum of law in opposition to the pending motion. By letter dated March 31, 2017, the Principal Court Attorney advised the parties that proceedings on the motion could not be had until a personal representative was appointed for Erik’s estate and a substitution of parties was made pursuant to CPLR §1015.On July 24, 2017, Kirsten L. Whalen-Pedersen, daughter of Erik and of his estate, filed a motion for substitution of parties. Included with her papers was an Order Appointing Representative of Decedent’s Estate — Intestate, issued by the Circuit Court of the Twenty-Second Judicial Circuit, McHenry County, Illinois and dated April 13, 2017. By letter dated July 31, 2017, the Principal Court Attorney outlined a briefing schedule for the attorneys, indicated the motion would be taken on submission without oral argument, and raised the question whether Ms. Whalen-Pedersen first needed to apply for ancillary letters in New York. Her attorney responded to this inquiry by letter dated August 13, 2017. Mr. Noyes did not file any papers in connection with this particular motion.DISCUSSIONSCPA §1601 sets forth the legislative purpose of ancillary administration of estates foreign to New York: “[A]ncillary administration shall be granted in this state only when there is an actual administration in the domiciliary jurisdiction.” Since Erik died a resident of Illinois and his daughter was appointed Administrator by an Illinois court, she qualifies for appointment as an ancillary administrator in New York. (See SCPA §1607). Surrogate’s Court
