New York’s Appellate Division has reversed the Suffolk County Surrogate’s decision to dismiss a petition brought to vacate an earlier decree which had admitted a will to probate upon the claim of undue influence. The will which was executed in 2002 left the decedent’s entire estate to his third wife . This marked a complete reversal of the testamentary intent of the decedent as it had been set out in a will drawn nine years earlier which had left his estate not only to his then second wife but also to various members of his extended family.

In the Matter of Vincent Loverme (2006 App Div. Slip Op 2376) the decedent died without issue in July 2003. In 2000, he had married the niece of his second wife. The Surrogate’s Court denied the petition to vacate without a hearing and the petitioner appealed.

In its decision, the Appellate Division pointed out that “Because vacatur disrupts the ordinary process of administration and creates a continual aura of uncertainty and nonfinality, a probate decree will be vacated only in extraordinary circumstances.” The court stressed that before a petitioner is entitled to a hearing to determine whether a probate decree should be vacated, it is necessary to show that there is a good chance that the application will be successful.

In this matter, the appellants were able to show that the decedent had a significant history of Alzheimer’s Disease at the time he executed his will and that he suffered from memory loss and was frequently confused. The court also noted that , while it is not unusual to leave an entire estate to one’s spouse, the relatively short period between the marriage of the decedent and the execution of his will coupled with the complete elimination of his extended family in the new will suggested the possibility that undue influence had been exerted on the decedent.

The Appellate Division therefore concluded that the Surrogate’s Court had improvidently made its determination without first holding a hearing and giving the petitioner the opportunity to be heard. Please note , however, that the Appellate Division was giving the petitioner the opportunity to have her day in court. It will still be necessary for her to establish at trial that the decedent lacked testamentary capacity or that he was the victim of undue influence.