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In determining who to appoint as fiduciary, the Surrogate’s Court gave deference to the fiduciary nominated by the agent of the testator. In re the Estate of Greenspon, 17 Misc. 3d 586 (N.Y. Sur. Ct. 2007)


If a testator left a will, generally they would have indicated in the will who they want to serve as the executor of the estate. The executor, also referred to as the personal representative, serves a fiduciary and is charged with the job of settling the affairs of the decedent’s estate.

While other interested parties can petition the court to be named the fiduciary, courts give great deference to the person named by the testator in the will as that is the person the testator wanted for the job.  However, for a variety of reasons, the nominated person may not be chose to or be able to serve in the role or other persons may feel they are a better fit for the role. If that happens, the court appoints another person and issues them letters of administration c.t.a. C.T.A means “Cum Testamento Annexo”- with the will annexed” or something added to the will.

In the case of In re the Estate of Greenspon, the Surrogate’s Court considered the issue of  whether the court must give deference to the fiduciary selected by the agent of the testator rather than the testator himself.

Decedent died on December 1, 2006. He was survived by his wife, Virginia Cleary, and three children. Two of his children were from a prior marriage. In the decedent’s will, the decedent nominated his attorney, Eric Kaufman, as executor. He also authorized Kaufman to name his successor executor.

Kaufman renounced the nomination and nominated the widow to serve as executor in his place. The petition for probate seeks appointment of the widow as administratrix c.t.a. However, one of the decedent’s sons from the prior marriage filed a cross petition asking that letters of administration to be issued  to him instead.

While it is settled practice that the courts give top priority and deference to the person a testator nominated in their will (see Matter of Duke, 87 NY2d 465 (1996)), this case presented a novel issue as to whether the person nominated by the agent of the testator should also be given top priority and deference.

In this case, in his will the testator specifically gave Kaufman the authority to designate a fiduciary in case of a vacancy in office. The court noted that by giving Kaufman this authority, the testator showed his confidence in Kaufman’s judgment. It was the testator’s intention to make a provision in case Kaufman could not do the job or chose not to. Thus, the court concluded that Kaufman’s designation of the widow as fiduciary should be honored just as if the testator has nominated her himself.

The son argued that Kaufman was not authorized to nominate his substitute, but his succession. In response to this argument the court stated that it was not necessary to read a will’s provisions so strictly when such a reading would be inconsistent with the clear intention of the testator. In other words, the court treated this as a will construction issue. When a term is unclear or subject to multiple interpretations, the court should look at the entirety of the will to determine the intent of the testator.

Here, the clear purpose of the testator was to provide for an executor in the event that the one he nominated did not serve.  Since that was his purpose, the difference between the terms “successor” and “substitute” is not material. The only reason that the spouse should not serve if she wishes is if she is determined to be unfit.  Since there is no such allegation, the court granted letters of administration c.t.a. to the surviving spouse.


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