Case Filed to Prevent Party from Being Executrix

This case is a probate proceeding brought before the Supreme Court, Appellate Division, Second Department, New York.

The petitioner, JZ, appealed, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated 16 October 2007, as, after a hearing, granted those Kings of the motion of the objectant, EHP, which were to disqualify her from serving as executrix for the estate of PV and to reinstate letters of administration previously issued to the objectant.

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

As discussed in the cases of Matter of Flood, 236 N.Y. 408, 410, 140 N.E. 936; Matter of Leland, 219 N.Y. 387, 393–394, 114 N.E. 854, 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. However, as discussed in the cases of Matter of Mergenhagen, 50 A.D.3d 1486 1488, 856 N.Y.S.2d 389; Matter of Rudin, 15 A.D.3d 199, 789 N.Y.S.2d 123; Matter of Duell, 258 A.D.2d 382, 685 N.Y.S.2d 686; Matter of Jurzykowski, 36 A.D.2d 488, 321 N.Y.S.2d 438, affd. 30 N.Y.2d 510, 330 N.Y.S.2d 60, 280 N.E.2d 887; Matter of Edwards, 274 A.D. 244, 80 N.Y.S.2d 801; Matter of Thompson, 232 A.D.2d 219, 647 N.Y.S.2d 950, 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.

Here, Queens Probate Lawyers said 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. It must be noted that 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. Furthermore, pursuant to SCPA 707[1], 711[8], the record is bereft of evidence that the petitioner was unqualified to serve as executrix for the subject estate or that she committed misconduct. In short, 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, in accordance with SCPA 707[2], the Surrogate’s Court improvidently exercised its discretion in disqualifying the petitioner from serving as executrix.

Long Island Probate Lawyers said that while the record did not demonstrate that the counsel retained by the petitioner acted improperly, given the hostility the objectant harbored for the petitioner’s counsel, and since it is unlikely that the objectant would cooperate with counsel in the future, the court determined that the petitioner should obtain new counsel, and letters of administration previously issued to the objectant must not to be reinstated.

Henceforth, the matter must be remitted to the Surrogate’s Court, Kings County, for the issuance of letters testamentary to the petitioner. In light of this, the petitioner’s remaining contentions was no longer addressed.

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