{Read in 5 Minutes} As a Trusts and Estates attorney, I frequently litigate matters in the Surrogate’s Court. One of the most common things a Court will do is decide whether to admit a person’s Will to probate. In the vast majority of cases, this is an uncontested proceeding, meaning that all interested parties consent to the admission of the Will to probate. The Court issues a Citation, setting a deadline for interested parties to file objections. What happens in a proceeding like this when a party does file objections? Is this something that goes before a jury, as we all see on TV and in movies? The answer is that the Surrogate’s Court can hold trials before a jury or a judge (when the judge hears the evidence without a jury present, this is known as a bench trial). Not every proceeding in Surrogate’s Court is entitled to a jury trial. In fact, the vast majority of them are decided by the judge, who determines the credibility of the witnesses and the facts of the case. However, probate proceedings are among those cases in which, if a party requests it, the Court can decide the matter by jury trial.
What happens when a probate proceeding goes to a jury trial? The Court will get a pool of available jurors from the county commissioner of jurors. The jurors will then appear in the Courthouse as potential jurors for the trial. The attorneys will have the opportunity to ask the jurors questions to determine whether there is any particular bias. For example, the potential juror who still has a chip on his shoulder 20 years later because his grandmother disinherited him might be unable to bring a neutral stance to the proceeding. Each attorney can eliminate a certain number of jurors, whittling the pool down to the jurors selected for the jury. An interesting thing I’ve noticed over the years is that, in other types of trials, potential jurors try very hard to be disqualified. Jurors in the Surrogate’s Court love serving on these juries. Why? Probably because they want to see the parties’ dirty laundry and family drama aired out in public before the whole Court. Every time I have had to eliminate a juror, they looked almost crestfallen!
There are some differences between the jury in a contested probate proceeding and the juries in the criminal trials we’re all used to seeing on television and in the movies. For example, a probate jury, like most civil proceeding juries, is comprised of only six people (as opposed to twelve). Also, unlike in criminal proceedings, the probate jury’s decision need not be unanimous. Only five of the six jurors need to agree for a jury to reach a verdict.
If a party wants a jury trial in the Surrogate’s Court, they must file a written demand for a jury and pay the appropriate filing fee. The objecting party must file the jury demand at the time they file their Objections with the Court. If the objecting party fails to request one, the Petitioner can request one — but heads up — there is a very tight timeframe for the Petitioner to file that jury demand with the Court.
There are other examples in which the Surrogate’s Court can hold jury trials. Basically, it comes down to one thing: whether the person is suing for money or for some sort of equitable relief, such as declining to probate a Will, disallowing an Executor’s accounting, or determining who the next of kin are in a kinship proceeding. Also, somewhat oddly, there is a little quirk in the New York Constitution that provides that if someone was entitled to a jury trial on the issue in question before New York State adopted its constitution in 1777, the party is still entitled to a jury trial today. The Surrogate’s Courts have litigated these issues over the years, but the takeaway is that, aside from contested probate proceedings, jury trials in the Surrogate’s Court are pretty rare.
For more information on this topic, please contact me.