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Court refused to hold evidentiary hearing on fitness of administrator.  Abram v. Abram, 2020 NY Slip Op 3195 (N.Y. App. Div. 2020)


In Abram v. Abram the court was asked to consider whether the Surrogate’s Court of New York County erred in denying an evidentiary hearing on the fitness of an administrator of a decedent’s estate.

Judges have broad discretion in determined whether an administrator or executor is qualified.  Typically courts will not disqualify someone unless there is a significant reason to believe that the estate is at risk.

It is not unusual for those who challenge the fitness of an administrator to do so simply because they want to serve as administrator or because they do not like the administrator for personal reasons that have nothing to do with their fitness to serve as administrator.

Qualified to serve as administrator
There are statutory rules related to who is qualified serve as the administrator of an estate.  If the decedent left a will, then the person the decedent nominated in their will has top priority for appointment to serve as the administrator (executor) of the estate.  The court is loath to deny the wishes of a testator, but will do so if there is a compelling reason to.

If the person nominated in the will does not serve or if the decedent did not leave a will, then the law provides who is eligible for appointment. The person with top priority is the decedent’s surviving spouse.

Fit to serve as administrator
Even if someone was nominated in the decedent’s will or is otherwise qualified to serve as administrator or executor, the person must also be fit to serve.

According to SCPA 707, a court can deny appointment as an administrator if for the following reasons:

  • Substance abuse
  • Dishonesty
  • Improvident
  • Want of understanding
  • Otherwise unfit

Challenging the administrator’s fitness
Oftentimes a challenge to the administrator is coupled with a will contest and a claim that the person seeking appointment as administrator was dishonest.  However, unless the allegations were sufficient for an evidentiary hearing, the court is likely to move forward with the appointment.

The court might require the administrator to post a bond to help calm any legitimate concerns. A bond is insurance that the administrator would have to purchase to protect the estate in case there are losses due to the misconduct or negligence by the administrator.

Abram v. Abram case
In Abram v. Abram the petitioner requested to be appointed as administrator of a decedent’s estate.  Another party cross-petitioned to be appointed.  The court denied the petition and granted the cross-petition. In the alternative, the petitioner requested to be appointed joint administrator.  The court denied that request as well.

As part of their argument to keep the cross-petitioner from being appointed administrator, the petitioner made an allegation of unfitness.  However, the court saw no evidence of unfitness and reused to hold an evidentiary hearing on the issue of fitness.  Even though the court did not make a finding of unfitness, it did require that the administrator. The petitioner appealed to the Supreme Court, arguing that the Surrogate’s Court abused its discretion in denying a hearing on the issue of fitness.

The Appellate Division concluded that the Surrogate’s Court did not abuse its discretion in no hold an evidentiary hearing on the issue of fitness under SCPA 707. The Appellate Division found that the petitioner’s allegations were “scattered” and many were “irrelevant.”  The court also noted that they other allegations were adequately addressed by the imposition of a bond requirement and acknowledgment of the right of interested parties to an accounting.

The court also agreed with the Surrogate’s Court decision not to make the petitioner a joint administrator.  Because of the hostility that the hostility that the petitioner demonstrated toward the appointed administrator, it would be difficult for the two to work together for the benefit of the estate.

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