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Court Decides Case Regarding Preliminary Letters Testamentary

 

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 the decedent and granted those branches of the motion of the objectant, 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 the objectant.

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.

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, 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 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 (see Matter of Scheu, 29 AD2d 626 [1967]; Matter of Goldman, 8 AD2d 737, 738 [1959]), thereby warranting a departure from the express intent of the testatrix. Thus, we 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 the objectant.

Accordingly, the court held that the decree is reversed 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 the objectant. The petitioner’s remaining contentions are without merit.

The rule is that, the 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 regarded. Contact the offices of Stephen Bilkis and Associates.

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