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WILL OF KELMAN v. << (2023)

Surrogate's Court, New York,

Probate Proceeding, WILL OF May KELMAN, a/k/a May R. Kelman, Deceased.

File No. 2018-708/E

Decided: August 03, 2023

Petitioner Public Administrator of Suffolk County's Attorney: Ernest R. Wruck, Esq., 1 Station Court, Bellport, NY 11713 Respondent/Movant Pro Se: Peter Kelman Interested Party/Cross Movant Robert Kelman's Attorney: David A. Smith, Esq., 500 Old Country Road, Ste. 109, Garden City, NY 11530 Respondent Christopher Kelman's Attorney: Barrett & Winn, Esqs., 26 Carrol Street, Amityville, NY 11701 Interested Party Edith Kelman's Attorney: Haley Weinblatt & Calcagni, LLP, 1601 Veterans Memorial Highway, Islandia, NY 11749

Upon the following papers numbered 1 to 34 read on these motions to compel discovery, and the cross-motion seeking protective orders and an order dismissing objections; Notices of Motion and supporting papers 1-12; Notices of Cross-Motion and supporting papers 13-18; Answering Affirmations and supporting papers 19-26; Replying Affirmation and supporting papers 27-34; it is’

ORDERED that, for the reasons set forth herein, the cross-motion seeking dismissal of the objections filed by Peter Kelman is granted; and it is further’

ORDERED that, the objections to the petition for probate filed by Peter Kelman are dismissed; and it is further’

ORDERED that, with the dismissal of the objections the remaining motions are denied as moot; and it is further’

ORDERED that, counsel for the remaining parties are directed to appear at a virtual conference via Microsoft Teams in this matter on August 17, 2023 at 10:00 a.m. A link to the conference shall be provided by the court prior thereto.

Before the court are three motions, filed by objectant, Peter Kelman wherein he seeks to expand the scope of discovery beyond the 3 year/2 year limitation set forth in Uniform Rule 207.27 (22 NYCRR 207.27), and compel production of documents from both Robert Kelman and attorney Miles Anderson, Esq. Robert Kelman opposes the motions and has filed cross-motions seeking an order dismissing Peter Kelman's objections on the grounds that he lacks standing pursuant to SCPA 1410, as well as protective orders enjoining any examination of himself or Edith Kelman by Peter.


Decedent, May Kelman, a/k/a May R. Kelman, died on January 25, 2018 survived by three children (Robert Kelman, petitioner, Peter Kelman, objectant, and Edith Kelman) and three grandchildren, the children of her pre-deceased son Micheal Kelman: David Kelman, Andrew Kelman and Christopher Kelman (objectant). The Public Administrator of Suffolk County, who was appointed as the temporary administrator of the estate on August 16, 2019, has filed a petition seeking to probate a purported will dated September 28, 2007. Pursuant to the terms of the propounded instrument, decedent left her grandson David Kelman $50,000, her daughter in law (wife of decedent's late son Micheal) $50,000 and the residuary of her estate to her three children in equal shares.


Peter has now filed three motions seeking to expand the scope of CPLR Article 31 discovery and to compel the production of additional documents from Robert Kelman and Miles Anderson, Esq. However, as a threshold matter, Robert's attorney has cross-moved for an order dismissing Peter's objections on the grounds that Peter lacks standing pursuant to SCPA 1410, as he is not adversely affected by the propounded will. Counsel for Edith Kelman and the Public Administrator have filed affirmations in support of the motion to dismiss Peter's objections.

Robert argues in his cross-motion that under the terms of the propounded instrument, after specific bequests of $100,000.00, Peter would be entitled to a one-third (1/3) share of decedent's residuary estate. Robert argues that the current value of the probate estate, which has been marshalled by the Public Administrator, totals approximately $2,072,000.00, and that Peter's one-third share of the residuary estate is thus greater than if the estate were to pass via intestacy, which would result in Peter receiving a one-quarter share of the estate.

Peter and Christopher Kelman oppose the cross-motion seeking to dismiss Peter's objections. In his opposition, Peter argues that his standing to object to the propounded will was established by the court's issuance of a discovery order which allowed him to participate in CPLR Article 31 pre-trial discovery, and that the motion to dismiss his objections is late and procedurally inappropriate.

Peter also argues that he has standing because alleged misdeeds of Robert disqualify him from taking under the will. Peter alleges that Robert's misdeeds include destroying an earlier will (a copy of which Peter asserts was filed with the court), drafting the 2007 will, unduly influencing decedent with respect to the drafting of the 2007 will, and propagating a scheme of fraud and a continuing course of misconduct to deprive Peter of his rightful share of decedent's estate.

Christopher also opposes the cross-motion seeking to dismiss Peter's objections arguing that Peter does in fact have standing to object because he has a pecuniary interest to protect. Christopher argues that Robert's mismanagement of decedent's financial affairs, and/or fraud, has resulted in approximately $1,400,000.00 in estate assets that are unaccounted for, and thus that Peter has a right to object “and protect his interest as a Distributee” because the amount he would receive if these assets were deposited in the estate account would exceed what he would be entitled to under the will. Additionally, Christopher argues that Robert should be required to answer relevant questions concerning the decedent's financial affairs.


SCPA 1410 provides in pertinent part that: “Any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof.” Therefore, to object to the probate of a will, a person must have a financial interest in the outcome of the litigation and be adversely affected by the admission of the will to probate. A person who takes more under the propounded will than his or her intestate share lacks standing to object because there is no pecuniary interest to protect (see Matter of Hall, 12 AD3d 511; Matter of McGoldrick, 7 Misc 3d 1001(A); SCPA 1410).

It appears that the Public Administrator has marshalled estate assets in excess of $2,000,000.00. In this case, since Peter's one-third interest in the residuary estate under the propounded will is greater than his intestate share, his pecuniary interest is not adversely affected by the probate of the propounded will, and thus he had no standing to object (see SCPA 1410; see also Matter of Wang, 5 AD3d 785; Matter of Waldman, 1 AD2d 980; Matter of Ballmann, 198 Misc. 916; In re Estate of Hall, 12 AD3d 511). Nor does Peter have standing to object to the propounded will based upon being adversely affected by a prior will. While it does appear that decedent may have executed a will in 1990, the original will is not on file with the court and, of particular importance, it appears that the dispositve provisions of that will are the same as intestacy.

Additionally, this court, by issuing an order scheduling CPLR Article 31 discovery, made no determination concerning Peter's standing. Further, although Peter argues that the cross-motion to dismiss his objections is late and procedurally inappropriate, he has given the court no authority to support his position. Finally, Peter's arguments that Robert's misdeeds deprived the estate of assets, or disqualify him from taking under the will, are issues that would be addressed in the context of an accounting proceeding, not a probate.

Vincent J. Messina Jr., S.

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WILL OF KELMAN v. << (2023)

Docket No: File No. 2018-708/E

Decided: August 03, 2023

Court: Surrogate's Court, New York,

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