Legal Question in Wills and Trusts in New York

How is a disputed, "none-exists" vs. "one-does-exist" codicil get probated, administered, in an estate?

Our dad deceased 6-Aug-2011. Surr. Letters issued 3-NOV-2011. Beneficiaries are me and my three brothers. I am, and always have been, a 1 of total 2 coexecutor; the other coexec. is a beneficiary brother, same as I, and same time length as me.

One of the items left to do in estate is... it's always been my, + 1 brother's, position that my dad has both a will and a codicil... the other coexec.'s, and +1 brother's, position has always been, "there is no codicil".

It significantly self-serves monetarily the "none-exists" coexec. + 1 brother to say no codicil exists; and, frankly, the opposite is true with "it-does-exist" me and the remaining brother (so there's both a 1-1 coexec's and a 2-2 benef's split, one could say).

Myself and my "it-exists" brother each only have a copy of what our dad gave the each of us, when he did the same with his will (and his then DPOA doc).

There's a very high percent that my "it-does-not-exist" coexec has or knows where the original "inked" is, because he did re: the will, but to-date he's always refused to disclose where or how the original ink'd signatured will got filed; always saying "it doesn't matter, everything Surr. needed before NOV-2011 was long ago had; there is no codicil."

The same attorney draftsman and two witnesses that "did" our dad's will, are also the same that did the codicil (they were done on the same day; yes, there's a story as to why, but guessing not needed herein).

We live in, and the Surr,Ct is in, a rural NY county and I'm doing things srl... as my "it exists" brother and I already spent about $40k in attorneys' and related fees re: estate other one litigation, before current last 4yrs doing things srl and doing equal or better thus far than what the 40k got us; anyway...

For a petition, do I any reason do a SCPA-2107(2) first to give the assigned judge an opportunity to layout out how he wants things??? Or save the filing fees and just go maybe via SCPA-1420, or 2105 (the property being the ink'd codicil), or do a 2102(6), or some other numeric(s) soup [SCPA-102; EPTL/CPLR/OTHER option(s)]...???

How are codicils normally handled and. or, decreed as valid? Are they just usually petitioned along side with the decedent's will?

Thank-you in advance for sharing your thoughts and knowledge.

Asked on 6/08/22, 6:08 am

1 Answer from Attorneys

David Slater David P. Slater, Esq.

Until the codicil is produced , filed with the court and probated, it has not bearing on the estate.

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Answered on 6/09/22, 4:32 am

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