MEMORANDUM From: Ravi Vohra To: Robert H. Groman, Esq.

Date: 5/18/12 Re: Horizontal and Vertical Virtual Representation Questions Presented: 1. What is the difference between horizontal and vertical virtual representation and does a will need to have a horizontal virtual representation clause before it can apply in a given case? Discussion: I. Section 315 of the Surrogates Court Procedure Act (the Act), titled [j]oinder and

representation of persons interested in estates, applies to all surrogates proceedings in which all persons interested in the estate are required to be served with process. SURR. CT. PROC. ACT 315 (McKinney 2012) (defining an interest in the estate as both interests in income and principal). It allows the surrogates court to deem members of certain classes or contingent beneficiaries virtually represented, thus obviating the need to serve process on such individual(s). A party seeking to virtually represent someone in a surrogates court proceeding other than probate, must prove to the court that the interests of the representor and representee are identical, or at least so similar that the representees constitutional right to be heard in the proceeding will be satisfied by the representor appearing on its behalf. See In re Ginsburgs Estate, 115 Misc. 2d 122, 123 (N.Y. Sur. 1982). In a probate proceeding, however, the interests

of the representor and representee do not have to be identical in two situations as long as certain conditions are met.1 1. The Difference Between Vertical and Horizontal Virtual Representation and the Applicability of Horizontal Virtual Representation

There are two types of virtual representation vertical and horizontal. Vertical representation, the type of virtual representation used in most probate proceedings, occurs when a party to the proceeding represents the interests of individuals whose interests are successive to such partys interests. When all of the requisite criteria of section 315 are satisfied, vertical representation is presumed to be available, regardless of whether the will being offered for probate authorizes it. See In re Schwartz Estate, 71 Misc. 2d 80, 81 (N.Y. Sur. 1972) (allowing testators daughter to represent testators granddaughter in an accounting proceeding). But see In re Clarks Will, 79 Misc. 2d 864, 866 (N.Y. Sur. 1974) (holding that a decedent's grandchildren, who were currently receiving income under a trust created by the decedent, could not represent their children, who had a contingent remainder interest in such trust income). Horizontal virtual representation, governed by section 315(5) of the Act, does not have the same presumption of availability. Horizontal representation allows for the representation of persons under a disability2 Where a party to the proceeding has the same interest as a person
1

SURR. CT. PROC. ACT 315(4) (McKinney 2012) (providing that individuals who hold a contingent interest in the estate based on a relationship with a party to the proceeding or individuals who would take under the will only upon the occurrence of a future event after the vesting of the interest of the representor shall be deemed to have the same interest as the representor if the following three conditions are met: (1) they are beneficiaries of the same trust or fund; (2) they have a common interest in proving or disproving the instrument offered for probate; and (3) the representee would not receive a greater financial benefit if such instrument were denied probate (in the case where such beneficiaries have a common interest in proving such instrument) or admitted to probate (in the case where such beneficiaries have a common interest in disproving such instrument)).
2

A "person under disability," as defined by the Act, is any person who is: (a) an infant; (b) an incompetent, that is, one judicially declared incompetent to manage his or her affairs; (c) an incapacitated person, that is, any person who for any cause is incapable adequately to protect his or her rights, including a person for whom a guardian has been appointed pursuant to Article 81 of the Mental Hygiene Law; (d) unknown or whose whereabouts are unknown; or (e) confined as a prisoner who fails to appear under circumstances which the court finds are due to confinement in a

under a disability, it is not necessary to serve the person under the disability. It is allowed only where expressly provided for in an instrument. SURR. CT. PROC. ACT 315(5) (McKinney 2012). A precondition to the implementation . . . of section 315(5) of the Act is that the validity of the instrument containing the express authorization must not be questionable. In re Ginsburgs Estate, 115 Misc. 2d 122, 123 (N.Y. Sur. 1982). Accordingly, where the instrument is a will, an interested person under a disability must be given an opportunity to be heard on the validity of the will and cannot be virtually represented in the will contest proceeding. Id. Unless Ginsburg is overruled, an express provision authorizing horizontal virtual representation in a will not yet admitted to probate may be of no effect in the probate process.

penal institution. SURR. CT. PROC. ACT 103(40); (25); (26) (McKinney 2012).