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Disinherited Daughter Challenges Will


The decedent died leaving a will. The will nominates 2 s executors but one of them renounced his appointment. The decedent was survived by his two adult children.

A New York Probate Lawyer said that the will provides that the decedent’s entire residuary estate shall be distributed to decedent’s companion. The will specifically disinherits the decedent’s children. The executor has petitioned for preliminary letters testamentary.

By order to show cause, the decedent’s daughter seeks an order (i) denying the issuance of preliminary letters testamentary to the executor; (ii) disqualifying him from serving as executor of the estate; (iii) removing him as the attorney for the estate; (iv) compelling the executor to comply with discovery demands previously served; (v) compelling him to produce and file with the court an alleged 2004 will of the decedent; (vi) appointing a guardian ad litem to represent the interests of the decedent’s two infant grandchildren named as beneficiaries in the prior will; (vii) appointing the daughter as executor since she was alleged named as executor in the 2004 will; (viii) staying the issuance of preliminary letters to the executor pending a hearing on the order to show cause; and (ix)adjourning the SCPA 1404 examinations.

A New York Will Lawyer said the issue to be resolved in this case is whether preliminary letters should issue to the executor.

Brooklyn Probate Lawyers said SCPA 1412, which governs the issuance of preliminary letters testamentary, was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate. The purpose of SCPA 1412 was to honor the testator’s preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest.

Bronx Probate Lawyers said that although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator’s will. A person not named as an executor has no standing to seek preliminary letters. Moreover, SCPA 1412 provides that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters.

Under 1412 is mandatory “upon due qualification”. If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

A testator’s wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied, however, where the nominated executor’s eligibility is at issue. Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707. Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters. Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator.

SCPA 1412 [2][a] affords an executor named in a later will a priority over an executor named in an earlier will. Where competing wills are offered, the court may, however, issue preliminary letters to the executor of the earlier will for “good cause shown”. Good cause shown has been found to exist where the circumstances surrounding the execution of the later will are so suspect that issuance of letters to the executor of the earlier will better protect the parties.

Here, daughter has requested that preliminary letters issue to her as executor under the alleged 2004 will. The petitioner’s counsel states that the petitioner did not draw a will for the decedent in 2004 and has no knowledge of a 2004 will. Even if there is an earlier will naming the daughter as executor, the executor, as an executor named in the purported later will, has a prior right to letters pursuant to the provisions of SCPA 1412(2)(a). Under SCPA 1412, preliminary letters must issue to the executor in the absence of good cause shown or serious misconduct which renders him unqualified.

The daughter argues that preliminary letters should not issue to the executor for the following reasons. First, she claims the executor has failed to produce the 2004 will. Second, she claims that the executor has failed to comply with discovery demands. Third, she claims that he is unfit to serve because of alleged misstatements by the process server upon which the order for substituted service was based and the fact that the letter enclosing the waiver and consent were sent to the wrong address. Fourth, she questions the valuation of the assets set forth by executor in the application for preliminary letters. Lastly, she claims that the executor acted in collusion with the residuary legatee. All of these allegations fail to demonstrate “good cause” or serious wrongdoing which would permit the court to nullify the decedent’s choice of a fiduciary.

The 2006 will dispenses with the filing of a bond. Pursuant to SCPA 1412(5), even if the will dispenses with the filing of a bond, the court may require a bond if “extraordinary circumstances” exist. There are no such extraordinary circumstances here. Preliminary letters testamentary shall issue upon his duly qualifying under the law, to serve without bond.

Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers will assist you in pursuing an action for the implementation of the provisions provided in a last will and testament. Our Nassau County Estate lawyers are always ready to render their advice on how ones property be divided in order to ensure that the division will be in accordance with law.

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