On 13 October 2006, a decedent died without a spouse or children and leaving a will dated 5 September 1986. Under the will, in the event that one of the decedent’s brothers (“the brother”), who is the nominated executor, and the decedent’s nephew, the first named contingent executor, predeceased the decedent, failed to qualify, or if the office of executor is otherwise vacant, the decedent’s niece is nominated as the contingent executor.
The first named contingent executor did, in fact, predecease the decedent. Thus, the decedent’s niece is nominated as the contingent executor.
New York Probate Lawyers said separate petitions for the will’s admission to probate have been filed by the nominated executor and the contingent executor, each seeking to be appointed as executor; cross-application for preliminary letters testamentary pending the probate proceeding (estate litigation or estate administration). The propounded will dispenses with the filing of a bond.
In support of the contingent executor’s application for preliminary letters testamentary, the contingent executor alleges that the nominated executor is duplicitous, lax and dishonest. She also alleges that, while the decedent was incapacitated by dementia and Alzheimer’s Disease, the nominated executor conspired with his brother, brother-two, to isolate the decedent from her friends and family, exerted undue influence over her and robbed her of her property with an intention to deprive her family and heirs of their rightful share of her estate.
It appears that decedent appointed brother-two as her attorney-in-fact on 25 March 2006. Long Island Probate Lawyers said in his capacity as her attorney-in-fact, brother-two conveyed title to the decedent’s residence to himself, his daughter, and the nominated executor shortly before decedent’s death.
The contingent executor asserts that preliminary letters testamentary should be issued to her immediately so she can discover and protect the assets she asserts belong to the estate before the aforesaid brothers can conceal and destroy them. Further, Manhattan Probate Lawyers said she presented the affidavit of the decedent’s sister which essentially makes the same allegations as her.
The nominated executor opposes the contingent executor’s application for preliminary letters testamentary. He denies the allegations of impropriety and states that he intends to fully investigate and discover all assets belonging to the decedent’s estate, whether or not said assets were transferred from the decedent’s name prior to her death.
Under the law, a testator’s wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied, however, where the nominated executor’s eligibility is at issue. When there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that dishonesty makes him ineligible. Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters.
Here, the nominated executor and the contingent executor have petitioned separately to be appointed the preliminary executor, each to the exclusion of the other. Here, however, under the law, preliminary letters must issue to the brother alone as the nominated executor in the absence of good cause shown or serious misconduct which renders him unqualified. The contingent executor has failed to demonstrate “good cause” or serious wrongdoing that would permit the court to nullify the testator’s choice of fiduciary. Accordingly, the brother’s application for preliminary letters testamentary is granted and the contingent executor’s application is denied.
The allegations raised by, if true, are serious. It appears that the more appropriate remedy would be for the contingent executor, as special administrator, to commence a proceeding to discover assets that she claims should be part of the decedent’s estate.
Henceforward, based upon the court’s broad equitable powers to convert or fashion a remedy upon the facts alleged, the contingent executor’s application is deemed as one for the issuance of limited letters of administration to her. Thus, limited letters of administration with respect to the decedent’s estate shall issue to the contingent executor upon duly qualifying according to law, without bond; said letters to be limited to prosecuting a discovery proceeding.
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