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Petitioner Appeals a Surrogate Court Decree

In a probate proceeding, the Petitioner appeals from so much of a decree of the Surrogate’s Court, Kings County dated July 1, 2004, as denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of an immediate relative and granted those branches of the motion of the objectant, Mr. HP, 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 Mr. HP.

In this Court now ordered that the decree is reversed insofar as appealed from and the matter is remitted to the Surrogate’s Court for an evidentiary hearing, 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 petitioner (appellant herein) from service as executrix, and to issue letters of administration to Mr. HP.

A testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. 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.

Here, 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 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, Mr. HP, which was to deny the issuance of preliminary letters testamentary to her. Based upon the motion papers alone, the Surrogate’s Court concluded 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 toward the petitioner and her counsel.” We 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.

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 warranting a departure from the express intent of the testatrix. Thus, we remit the matter to the Surrogate’s Court, 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 Mr. HP. The petitioner’s remaining contentions are without merit.
In contesting the intrinsic validity of a will, as in this case – the appointment of the executrix, it must be intelligibly proved in court after a hearing on the matter. If you think that there is an irregularity in the preparation of the will of a loved one, call Stephen Bilkis & Associates.

We can help out in your arguments before the courts to disprove the will alleged to be written with undue influence by biased and crooked people. Call us now.

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