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Court Reverses Order Disqualifying Executrix

In a probate proceeding, the petitioner, Mrs. JP, appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated October 16, 2007, as, after a hearing, granted those branches of the motion of the objectant, Mr. EP III, which were to disqualify her from serving as executrix for the estate of a deceased relative and to reinstate letters of administration previously issued to the objectant.

The order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, Mr. EP III, which was to disqualify the petitioner is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant is denied, and the matter is remitted to the Surrogate’s Court, Kings County, for further proceedings in accordance herewith.

The right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded, as explained in the case of Matter of Flood ( 236 N.Y. 408, 410, 140 N.E. 936). However, in the case of Matter of Mergenhagen (50 A.D.3d 1486 1488, 856 N.Y.S.2d 389) the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely.

The objectant sought to remove the petitioner as executrix on the ground that she was unqualified to serve given her selection of counsel against whom the objectant had been adversarial in a prior conservatorship proceeding and with whom he had a hostile relationship. Notably, the evidence adduced at the hearing demonstrates that the objectant was the source of the friction and hostility between himself and the petitioner and her counsel. Moreover, the record is bereft of evidence that the petitioner was unqualified to serve as executrix for the subject estate or that she committed misconduct as provided under SCPA 707[1], 711[8]. In sum, the record demonstrates that it was the objectant himself who was primarily responsible for any interference with the proper administration of the estate. Under the circumstances, the Surrogate’s Court improvidently exercised its discretion in disqualifying the petitioner from serving as executrix (see SCPA 707[2]).

Although the record does not demonstrate that counsel retained by the petitioner acted improperly, given the hostility the objectant harbors for the petitioner’s counsel, and since it is unlikely that the objectant will cooperate with counsel in the future, we determine that the petitioner should obtain new counsel, and letters of administration previously issued to the objectant should not be reinstated.

The matter should be remitted to the Surrogate’s Court, Kings County, for the issuance of letters testamentary to the petitioner. In light of our determination, we need not address the petitioner’s remaining contentions.

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