Probate Lawyers said before the court is a motion to dismiss, pursuant to CPLR 404 for lack of subject matter jurisdiction, filed on behalf of the co-executor of the estate of the deceased herein. The motion seeks dismissal of a petition filed on behalf of another co-executor of decedent’s estate, which petition requested a court order directing the co-executor, and a corporation, doing business as a stock transfer agent, to execute documents necessary to complete the transfer of another corporation, corporate stock certificates, currently registered in the name of the decedent, to another in his individual capacity.
An Estate lawyer said that the decedent died on May 14, 2010, leaving a last will and testament dated August 6, 2003. The decedent was survived by three children. The will nominated co-executors and directed that each receive an equal one-half share of the decedent’s residuary estate. The will was admitted to probate and letters issued to co-executors on October 27, 2010.
In his petition, the executor alleges that the decedent gifted two stock certificates to the executors on or about December 29, 2004, by endorsing the certificates in blank, communicating that he was making a gift, and physically delivering the certificates to the executor. He further alleges that the decedent’s intent was to make a gift to the executor of all of decedent’s interest in the stock, and that the gift was then accepted. Photocopies of the stock certificates have been filed and the reverse side of each certificate, which is a standard form for the sale, assignment and transfer of the shares of stock, reflects the date of December 24, 2004 and the decedent’s signature; the balance of each form is entirely blank. On the certificate, the decedent’s signature does not appear on the proper line for a transfer of the shares.
The co-executor took no further steps to transfer the certificates into his own individual name until after the death of his father, when he requested that the transfer agent register the shares in co-executor’s name individually. The transfer agent was unwilling to register the stock certificates in co-executor’s individual name without the written consent of co-executor of decedent’s estate. The co-executor has refused to execute the required documents.
A Westchester County Probate Lawyer said the co-executor asserts that the co-executor disputes that decedent gifted these shares of stock to the co-executor in 2004; she takes the position that the shares are a part of the decedent’s estate, to be shared equally between the two siblings, in accordance with the terms of decedent’s will.
Suffolk County Probate Lawyers said the petition filed by co-executor is premised upon his assertion that decedent made a completed gift of the shares to co-executor in 2004. If he is correct, then it follows that this court lacks jurisdiction over the shares, as they were transferred out of decedent’s estate almost six years prior to his death, though the court would have jurisdiction to decide the issue regarding the purported gift.
On the other hand, if the co-executor’s presumption is incorrect, and the gift was never completed, this court has subject matter jurisdiction over the shares. However, even if the court were to agree with the assertion that the refusal to provide Computershare with her written approval of the stock registration sought by the executor is analogous to a fiduciary’s wrongful retention of property belonging to someone other than the estate, the court can only direct a fiduciary to deliver property to its rightful owner where the claimant has clearly established his right to the claimed property. The executor has failed to do this. The possession of the two certificates, which appear to have been dated and signed but not otherwise completed by the decedent, together with his self-serving statements, are insufficient to demonstrate that the executor has an absolute right to the corporation shares.
The motion to dismiss is granted. As noted by the oppositor, the question of whether or not the shares were the subject of a completed gift may be addressed in an accounting proceeding brought by either party as a co-executor of decedent’s estate.
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