§560:3-412  Formal testacy
proceedings; effect of order; vacation.  Subject to appeal and
subject to vacation as provided in this section and in section 560:3-413, a
formal testacy order under sections 560:3-409 to 560:3-411, including an order
that the decedent left no valid will and determining heirs, is final as to all
persons with respect to all issues concerning the decedent's estate that the
court considered or might have considered incident to its rendition relevant to
the question of whether the decedent left a valid will, and to the
determination of heirs, except that:



(1)  The court shall entertain a petition for
modification or vacation of its order and probate of another will of the
decedent if it is shown that the proponents of the later-offered will:



(A)  Were unaware of its existence at the time
of the earlier proceeding; or



(B)  Were unaware of the earlier proceeding and
were given no notice thereof, except by publication;



(2)  If intestacy of all or part of the estate has
been ordered, the determination of heirs of the decedent may be reconsidered if
it is shown that one or more persons were omitted from the determination and it
is also shown that the persons were unaware of their relationship to the
decedent, were unaware of the decedent's death or were given no notice of any
proceeding concerning the decedent's estate, except by publication;



(3)  A petition for vacation under paragraph (1) or
(2) must be filed prior to the earlier of the following time limits:



(A)  If a personal representative has been
appointed for the estate, the time of entry of any order approving final
distribution of the estate, or, if the estate is closed by statement, six
months after the filing of the closing statement;



(B)  Whether or not a personal representative
has been appointed for the estate of the decedent, the time prescribed by
section 560:3-108 when it is no longer possible to initiate an original
proceeding to probate a will of the decedent; or



(C)  Twelve months after the entry of the order
sought to be vacated;



(4)  The order originally rendered in the testacy
proceeding may be modified or vacated, if appropriate under the circumstances,
by the order of probate of the later- offered will or the order redetermining
heirs;



(5)  The finding of the fact of death is conclusive as
to the alleged decedent only if notice of the hearing on the petition in the
formal testacy proceeding was sent by registered or certified mail addressed to
the alleged decedent at the decedent's last known address and the court finds
that a search under section 560:3-403(b) was made.



If the alleged decedent is not dead, even if
notice was sent and search was made, the alleged decedent may recover estate
assets in the hands of the personal representative.  In addition to any remedies
available to the alleged decedent by reason of any fraud or intentional
wrongdoing, the alleged decedent may recover any estate or its proceeds from
distributees that is in their hands, or the value of distributions received by
them, to the extent that any recovery from distributees is equitable in view of
all of the circumstances. [L 1996, c 288, pt of §1]



 



Rules of Court



 



  Entry of judgment, appeals, see HPR rule 34.