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Appointment of a Successor Trustee is Not Required Under the Terms of a Will – Stavin’s Will, 391 N.Y.S.2d 412 (N.Y. App. Div. 1977)


Testators often include provisions for successor executors to take over the responsibilities of administration in the event that the primary executor is not able or is unwilling to serve through the entire period of administration.  Naming a successor trustee also provides for a more efficient transfer of responsibility in the event the primary trustee steps down.

In the case of Stavin’s Will, there was a dispute related to the appointment of a successor trustee that had its roots after probate began when one of the two co-executed died.  The person named by the testator as the deceased co-executor’s successor petitioned the court for letters.  The remaining co-executor objected.

In 1969 E. Stavin died testate. In her will she named her two sons, C. Stavin and M. Stavin as co-executors of her estate.  The will also named the wife of C. Stavin as his successor executor if C. Stavin predeceased the testator. Similarly, the will named the wife of M. Stavin as his successor executor if he predeceased the testator. Neither son predeceased the testator. However, in 1970, four months after letters were issued, M. Stavin died.  For the next 5 years C. Stavin when about the duties of administering E. Stavin’s estate.

In 1975, the widow of M. Stavin filed a petition with the Surrogate’s Court requesting a construction of the will adjudging that she was entitled to receive letters testamentary and serve as co-executor of E. Stavin’s estate.  The Surrogate granted her petition, but C. Stavin appealed.

The basis of C. Stavin’s appeal was that the exact wording of the testator’s will was that M. Stavin’s wife was to be named as successor executor only if M. Stavin predeceased the testator, and he did not.  M. Stavin’s wife sought to interpret the clause liberally and not “technically.” She contended that in naming both sons executor and the wives as successor executors, the intention of the testator was that both branches  of the family was to be represented in the administration of the estate.  Thus, when M. Stavin died, the testator’s intention would be fulfilled by his wife serving as the representative of the deceased son’s branch off the family.

On appeal, the court disagreed with this interpretation.  Instead the appeals court sought to apply the provisions of Surrogate’s Court Procedure Act § 706 – When surviving or remaining fiduciary may act;  when successor must be appointed.  The rule states that when there is more than one executor, a successor executor is only appointed when it is necessary to comply with the express terms of the will.  Otherwise, the remaining executor or executors may proceed and complete the administration without the appointment of a successor executor.  Even though the petitioner originally presented this case to the Surrogate’s Court as a construction proceeding, the appeals court reasoned that this is not a construction case at all.  The provisions of the Surrogate’s Court Act provide a direction and that direction is that except as expressly directed by the will, in a circumstance such as the one here, a successor trustee is not to be appointed.

The appeals court also pointed out that M. Stavin’s wife did not petition the court for letters immediately after his death, but 5 years later.  The court surmised that most of the administration activities had been completed.  In fact, the only significant issue is a litigation among the beneficiaries that would likely be resolved with an accounting.  The court concluded by questioning whether it is likely that the testator would have wanted one executor to do the vast majority of the work and a co-executor stepping in at the end.

Finally, the court points to the requirement in Surrogate’s Court Procedure Act §1416 that anyone seeking to receive letters must qualify promptly—within 15 days. Although this provision is related to an original appointment, it shows that the court has an interest in prompt qualification and appointment.  Five years is far from prompt.

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