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A decree is meant to be the end of something. It admits a Will to probate, appoints a fiduciary, settles an account, or directs how an estate is distributed — and everyone is entitled to rely on it. That is precisely why reopening one is difficult, and why the Surrogate's Courts say plainly that a probate decree will be disturbed only in extraordinary circumstances.

Difficult is not impossible. People are left out of proceedings they should have been part of. Decrees are obtained on papers that were not true. A document surfaces that nobody knew existed. New York has a route for each of those situations, and which route applies makes a great deal of difference to what you have to prove and how long you have to do it.

Most descriptions of this subject cite CPLR 5015 and stop. There are three sources of power, and a Surrogate's Court has said so expressly.

The CPLR. SCPA § 102 provides that the CPLR and other laws applicable to practice and procedure apply in the Surrogate's Court except where the SCPA provides its own procedure. That is how CPLR 5015 — the general rule on relief from a judgment or order — reaches a Surrogate's decree at all.

The Surrogate's own powers. SCPA § 209(10) gives the court "all of the powers that the supreme court would have in like actions and proceedings," including such incidental powers as are necessary to carry its express powers into effect, and § 209(11) adds that the enumeration of powers is not exclusive.

Inherent power. Beyond both of those, a New York court may vacate its own judgment for sufficient reason and in the interests of substantial justice. That power exists to protect parties from judgments taken by fraud, mistake, inadvertence, surprise or excusable neglect, and it is reserved for unique or unusual circumstances. The Appellate Division has confirmed it applies on appeal from Surrogate's Court.

The grounds, and the time limits that really attach to them

CPLR 5015(a) sets out five grounds. Only one of them carries a deadline.

Excusable default. Available where a party did not appear and had a reason. The motion must be made within one year — and the year is measured from a specific event that is very often overlooked: service on the moving party of a copy of the judgment or order with written notice of its entry. If that was never served, the year has not started running. It does not run from the default, and it does not run from the date of the decree.

Newly-discovered evidence. Evidence which, if it had been introduced at trial, would probably have produced a different result, and which could not have been discovered in time to move for a new trial. There is no filing deadline on this ground. The cross-reference to the new-trial motion describes the evidence — how late it had to have surfaced to qualify — and is not a limit on when you may move.

Fraud, misrepresentation or other misconduct of an adverse party. No time limit in the rule. Note the standard the courts apply: on the fraud ground, a movant must show fraud in the very means by which the decree was procured, not merely fraud somewhere in the underlying transaction.

Lack of jurisdiction. No time limit, and no requirement to show a reasonable excuse or a meritorious position at all. Where the court had no jurisdiction over you, the decree must be vacated.

Reversal or vacatur of a prior judgment on which the decree was based. No time limit.

What you have to show — and why Surrogate's Court asks for more

In an ordinary civil case, vacating a default requires two things: a reasonable excuse for the default and a potentially meritorious claim or defense.

The Surrogate's Courts state the test more demandingly. A movant must show a reasonable excuse for the default or delay and the absence of willfulness; and a meritorious claim which is not established by allegations in conclusory form, but sets out sufficient facts to afford a substantial basis for the contest and a reasonable probability of success. Both additions matter. A vague assertion that the Will was procured by undue influence will not carry a motion to vacate.

The difference between defaulting and never being served

This is the distinction that decides most of these applications, and it is worth being precise about.

If you were cited and did not appear, you defaulted. You are inside the one-year clock, you must explain the default, you must show it was not willful, and you must set out a case with a reasonable probability of success.

If you were a necessary party and were never served, you are in an entirely different position. The court did not have jurisdiction over you. There is no time limit, and no excuse to offer. New York's rule is that a person who should have been made a party but was not is entitled to be put in the same position as if a citation had been served and he or she had appeared on the return date — which means the right to file objections, not merely the right to complain. The Appellate Division has held that a necessary party to a probate proceeding may obtain vacatur on evidence that he or she was not served with process.

Who is a necessary party in a probate proceeding is set by statute, and the list is longer than people expect. It includes the testator's distributees, the person named as executor, and — this is the part that catches families out — anyone named as a beneficiary, executor, trustee or guardian in another Will of the same testator filed in that court, whose interests are adversely affected by the instrument being offered.

When the problem is a Will nobody knew about

A later-discovered Will is a different problem from a defective decree, and New York has a specific provision for the part of it that hurts most: money that has already gone out the door.

SCPA § 209(1) gives the Surrogate power to open, vacate, modify or set aside any decree or order directing distribution of an estate which was made before the probate of, and without knowledge of, a Will affecting that distribution — to redirect distribution as justice may require, and to order the refund of property already distributed in error. It is one of the least-cited provisions in the Act and one of the most useful.

Separately, where letters have already issued and a Will is afterwards admitted to probate, the decree granting probate must revoke the former letters. That is mandatory, and it expressly contemplates a later Will being admitted after an earlier one.

We describe how that works in practice on our page on competing and later-discovered Wills.

What we do

We are asked to reopen decrees, and we are asked to defend them. Both start the same way: by establishing which of the routes above actually applies, because a motion brought on the wrong ground fails on the wrong test. If you have been told that a decree was entered in an estate you should have been part of, the first question is not whether you have a good case. It is whether you were served.