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Decades Old Sexual Abuse Allegations Not Sufficient to Disqualify Executor, Matter of Kalikow, 2008 NY Slip Op 33353(U) (N.Y. Surr. Ct. 12/16/2008)


In a will, the testator names the person or persons who he (or she) wants to serve as the executor of his estate.  The executor has a great deal of responsibility, as he will be responsible for managing the decedent’s assets, paying estate bills, and distributing them to his beneficiaries.  Upon the testator’s death, the person named in the will must petition the Surrogate’s Court to be formally appointed executor.  At that point, the person will receive letters testamentary.  While the court will give great deference to the judgement of the testator as to who is to serve as executor, the person named in the will is only a nominee.  The person must meet New York’s eligibility requirements in order for the court to issue him letters.

Under New York law, a person who is “dishonest” is not eligible to serve as a fiduciary.  This means that even if a person was nominated as an executor, if there is evidence that the person is dishonest, the Surrogate’s Court will deny his (or her) petition for letters testamentary and will prohibit him from managing the administration  of the decedent’s estate.  If the letters have already been issued, the court will revoke them.

In Matter of Kalikow, the decedent named co-executors.  Preliminary letters were issued.  However, beneficiaries under the will objected to the appointment of one of the co-executors.  They alleged that pursuant to Surrogate’s Court Procedure Act § 707, he was not eligible on the grounds of “dishonesty, improvidence, [and] want of understanding.” The court admitted the will to probate but did not issue letters testamentary.

The basis of the objections for the appointment of one of the co-executors was that several decades ago when he was a priest, he was accused of sexual abuse.  The objectants sought records from the diocese related to the accusations. The former priest sought to limit access to the records, arguing that they were irrelevant to his appointment to serve as a co-executor.

The issue before the court is whether a decades old accusation of sexual abuse is sufficient to render a person ineligible to serve as executor under Surrogate’s Court Procedure Act § 707. According to an investigator, the alleged victim’s mother stated that the former priest sexually abused her daughter about 30 years earlier.  The objectants argue that the records of the diocese bear on the former priest’s fitness to serve as executor.

The Surrogate’s Court disagreed with the objectants, finding that the grounds for disqualification are limited to the specific grounds stated in Surrogate’s Court Procedure Act § 707, including that the person is a minor; is a convicted felon;  is incompetent; is a non-domiciliary alien; abuses drugs or alcohol; or is dishonest.  Furthermore, the court notes that the disqualification must be based on a showing that the estate would be in jeopardy if entrusted to the person.  In other words, the court reasoned that if the objection is based on dishonesty, the alleged dishonesty must have a bearing on the person’s trustworthiness to manage the estate.  The objectants failed to show how allegations of sexual abuse made over 30 years ago bear on the former priest’s fitness to serve as an executor.

Generally, courts are very hesitant to disturb the judgement of the testator as to who is the most appropriate person to manage his or her estate.  If the former priest had been accused, but not prosecuted for embezzlement, the court’s decision might be different as allegations of financial crimes have more of a bearing on fitness to manage assets of an estate.  However, it is still questionable as to whether the court would find a 30 year old accusation of any sort relevant.

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