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Court Says Testator has Right to Choose Who Settles Their Estate

In a probate proceeding, a New York Probate Lawyer said that the petitioner, Joanne Zaccaria, appeals from so much of a decree of the Surrogate’s Court, Kings County, denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of Paula M. Venezia, and granted those branches of the motion of the objectant, Edward Hayes Pennington III, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The issue in this case is whether the Surrogate Court in this probate proceeding erred in denying petitioner’s cross motion for the issuance of preliminary letters testamentary on the estate of the testator, and granted that branch of the motion of the objectant, Edward Hayes Pennington III, to issue letters of administration to him.

The Court reversed the decision insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The Court held that, a testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her estate administration, and that selection is not to be lightly discarded. Queens Probate Lawyers said that while the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate, mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal.

In the case at bar, the testatrix, in her last will and testament, expressly nominated and appointed the petitioner as the executrix of her estate. Thus, her intent as to this appointment was clear. The Surrogate’s Court, inter alia, denied that branch of the petitioner’s cross motion which was for the issuance of preliminary letters testamentary and granted that branch of the motion of the objectant, Edward Hayes Pennington III, which was to deny the issuance of preliminary letters testamentary to her. Based upon the motion papers alone, the Surrogate’s Court concluded, among other things, that the relationship between the petitioner and her attorneys, and the objectant, was palpably poisoned, and that the papers submitted by the objectant evidenced a rational hostility towards the petitioner and her counsel. The Court further note that the Surrogate’s Court, in rendering its decision, deemed it unnecessary, in light of its conclusion, to reach the issue of whether the petitioner’s appointment under the will as the executrix was procured by undue influence.

In view of the foregoing, notwithstanding the evidence demonstrating that there was friction and hostility in the relationship between the petitioner and her counsel, and the objectant, an evidentiary hearing should have been held to determine whether such friction and hostility would interfere with the proper administration of the estate and whether the petitioner’s appointment as executrix under the will was procured by undue influence, thereby Westchester County Probate Lawyers said the Court remit the matter to the Surrogate’s Court, Kings County, for an evidentiary hearing on those issues and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III. The Court further held that, the petitioner’s remaining contentions are without merit.

The testator has the right to choose who will be administering his estate. You need a Kings Estate Administrator Attorney to able to give effect to the will of the testator. A Kings Probate Attorney can help you with the legal matters concerning probate proceedings. Stephen Bilkis and Associates can provide you with Kings Estate Litigation Attorney to assist you with your case.

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