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Executor of Will Sued


In a probate proceeding, the petitioner woman appeals from an order of the Surrogate’s Court dated October 16, 2007, as, after a hearing, granted those branches of the motion of the opponent man, which were to disqualify the petitioner from serving as executor for the estate of a woman and to reinstate letters of administration previously issued to the opponent man.

A New York Probate Lawyer said the court ordered that the order is reversed with costs, that branch of the motion of the opponent man, which was to disqualify the petitioner woman is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the opponent man is denied, and the matter is remitted to the Surrogate’s Court for further proceedings.

The right of a testator or the person who made the will to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded. However, the Surrogate Court may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper estate administration, and future cooperation is unlikely.

A Queens Family Lawyer said the opponent man sought to remove the petitioner woman as executrix on the ground that she was unqualified to serve given her selection of counsel against whom the opponent man had been adversarial in a prior conservatorship proceeding and with whom he had a hostile relationship. Notably, the evidence adduced at the hearing demonstrates that the opponent was the source of the friction and hostility between himself and the petitioner woman and her counsel. Moreover, the record lacks evidence that the petitioner woman was unqualified to serve as executrix for the subject estate or that she committed misconduct. In sum, the record demonstrates that it was the opponent himself who was primarily responsible for any interference with the proper estate administration. Under the circumstances, the Surrogate’s Court improvidently exercised its discretion in disqualifying the petitioner woman from serving as executrix.

Although the record does not demonstrate that counsel retained by the petitioner acted improperly, given the hostility that the opponent harbors for the petitioner’s counsel, and since it is unlikely that the opponent will cooperate with counsel in the future, we determine that the petitioner should obtain new counsel, and letters of administration previously issued to the opponent should not be reinstated. A Long Island Probate Lawyer said the matter should be remitted to the Surrogate’s Court for the issuance of letters of administration to the petitioner woman. The petitioner’s remaining contentions were not addressed.

In a similar case, the accused man correctly contends that the Supreme Court erred in disqualifying the law firm from representing him in his action. The disqualification was based on an alleged conflict of interest arising from the law firm’s previous representation of the deceased aunt of the complainant man in a real property transaction with the accused.

A party seeking disqualification of his or her adversary’s lawyer must prove the existence of a prior attorney-client relationship between the moving party and opposing counsel. The party must also prove that the matters involved in both representations are substantially related, and that the interests of the present client and former client are materially adverse. The complainants failed to satisfy the first of the foregoing criteria, since the law firm never represented them in any matter and, therefore, they lacked standing to seek the law firm’s disqualification. In this regard, the complainants’ reliance on the law firm’s previous representation of the deceased as a basis for their standing is misplaced. Additionally, the complainants failed to establish that the interests of the accused and of the deceased man’s estate are materially adverse. Accordingly, the complainants’ conclusive and speculative assertions regarding a conflict of interest were insufficient to warrant the disqualification of the law firm.

Similarly unavailing are the complainants’ contentions that disqualification was necessary, based on their conclusive assertions of a misuse of client confidences or because it would be necessary for a member of the law firm to testify at trial.

In assigning someone to take care of hard-earned properties, it is a must to take the necessary measures. Such person must be highly qualified and deserving. If you want to make sure that the person who executes your family member’s will, speak with the Kings County Probate Attorney and the Kings County Estate Litigation Lawyer from Stephen Bilkis and Associates.

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