Matter of Fread , 2020 NY Slip Op 05285 ( 2020 )

Matter of Fread (2020 NY Slip Op 05285)

Matter of Fread

2020 NY Slip Op 05285

Decided on October 01, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 01, 2020
Before: Kapnick, J.P., Gesmer, González, Scarpulla, JJ.

File No. 2015-4164 Appeal No. 11934 Case No. 2019-4232

[*1]In re Richard Fread concerning the Assets and Affairs of Ruth Fread, Deceased.

Richard Fread, Petitioner-Appellant,



Cynthia Amberg, et al., Respondents-Respondents. File No.

Wiggin & Dana LLP, New York (Shai Silverman of counsel), for appellant.

Farrell Fritz, P.C., Uniondale (John R. Morken of counsel), for respondents.

Order, Surrogate's Court, New York County (Nora Anderson, S.), entered on or about February 22, 2019, granting respondents' motion to dismiss the petition for lack of standing, unanimously affirmed.

Petitioner, one of decedent's four children, was specifically excluded as a beneficiary of a revocable trust, which decedent formed at the same time as she executed her last will and testament. The will provided that, if it was ever deemed invalid, the residuary estate would pass pursuant to the terms of the trust. The will was never offered for probate because decedent transferred her assets to the trust, leaving her estate without assets upon her death. Petitioner seeks discovery concerning the trust and the formation of the testamentary plan, pursuant to SCPA 2102(1).

The court properly concluded that petitioner failed to demonstrate that he had standing because he, admittedly, had no interest in the trust and decedent's estate was not offered for probate (see Matter of Devine, 126 AD2d 491, 494 [1st Dept 1987).Since decedent did not die intestate, petitioner does not qualify as a distributee (SCPA 103[14]). Therefore, SCPA 2102(1) is not the proper vehicle for petitioner to obtain the pre-action discovery he seeks.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 1, 2020