We strive to provide you the best possible outcome through individualized attention. We look out for what you want.

Supreme Court Westchester Sends Original Last Will & Testament of Article 81 Incapacitated Person to Surrogate’s Court of Westchester: Clash of Jurisdictions in our own Backyard

By: Gary E. Bashian, Esq.*


As is often the case with elderly clients, matters that are initiated in the Supreme Court can, for a variety of reasons, find themselves later embroiled in questions of jurisdiction.

Though each proceeding may involve the same characters and nucleus of facts, there are nevertheless jurisdictional concerns that can arise which must be addressed so as to ensure that the proper Court is exercising its authority on an issue over which they have jurisdiction. With the ever expanding population of senior citizens in the nation, this problem will only grow over the next few years because of issues relating to seniors that never existed years ago.

A clear illustration of this jurisdictional clash can be found in the Matter of Elena Duke Benedict recently decided by the Supreme Court Westchester County. (Sup Ct Westchester; index # 7243/07, Surr. Ct Westchester; file # 07-7243).

As one might expect, this action has a somewhat complicated factual and procedural history. Prior to the death of Elena Duke Benedict, she was subject to an article 81 Guardianship proceeding in the Westchester County Supreme Court.

In 2007, during the interim period between the appointment of a temporary Guardian of the person and property of Ms. Benedict, and the appointment of a permanent Guardian, the testatrix executed a Will. Upon testatrix’s death, this 2007 Will was filed by the then permanent Guardian of her person and property with the with the Westchester County Clerk’s Guardianship file which was part of a sealed Supreme Court proceeding.

Thereafter, one of Testatrix’s daughters moved in the Supreme Court Guardianship part, by Order to Show Cause, to transfer the original 2007 Will from the Guardianship file, still held with the Westchester County Clerk, seeking for the Will to be filed with the Surrogate’s Court.

The nominated executor of a previous 2006 Will, and adversary of the movant, objected to the motion asserting that the daughter did not have a right to compel the Supreme Court to transfer the 2007 Will to the Surrogate’s Court, and sought to have the 2007 Will remain sealed in the guardianship file pending an evidentiary hearing and declaratory judgment to have the 2007 Will declared invalid.

The Supreme Court held that the Surrogate Court Procedure Act (SCPA) § 1401 & 1402 granted the daughter “standing to compel the production of a purported Will.”(Matter of Benedict. Decision and Order filed and entered 8/11/10). Furthermore, the Supreme Court stated that “it is not for the Guardianship part to determine the validity of a Will. (Mental Hygiene Law §81.29(d)). The determination as to whether or not a will is valid lies within the jurisdiction of the Surrogate’s Court.”  Therefore, the Supreme Court compelled the County Clerk to transfer the original Will to the Surrogate’s Court in order to determine if it was in fact valid.

Accordingly, the motion for a declaratory judgment made by the nominated executor of the 2006 Will was denied.


*Gary E. Bashian is a partner in the law firm of Bashian P.C. with offices in White Plains, New York and Greenwich Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section as Vice Chair of the Estate Litigation Committee, and is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section.

Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, an associate at Bashian P.C. for his assistance in the composition of this article.

FindLaw Network