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Court Rules of Power of Surrogate


A man appointed his wife and his daughter as executors of his estate. The bank was designated as the successor executor. In a supplement to his will, he removed his wife as executor and named his daughter as the sole executor and appointed the bank as the successor executor. Following the man’s death, a hearing was ultimately conducted in the Surrogate’s Court to determine whether the daughter’s initial letters of administration should be revoked and whether she was ineligible to be a permanent executor and trustee under her father’s will. The Surrogate decided that the daughter’s removal was justifiable and the court affirmed on the ground that the record supported a finding of inexcusable delay and the intentional refusal to obey the court’s direction. The court also affirmed the appointment of the bank as permanent executor and trustee. In the meantime, the wife who also died and her will were offered for probate in Westchester County.

The Surrogate court issued preliminary letters of administration to the bank being the nominated executor and trustee. Queens Probate Lawyers said the daughter intervened objections to the validation of the will. The law firm which had provided attorneys for the wife during her lifetime regarding the validation proceeding in her husband’s will was retained by the bank as its counsel in both properties.

By order to show cause, the bank applied for a ruling admitting the husband’s Will and its supplement, the letters of administration and trusteeship to validate. The daughter opposed the bank’s application and in a cross-motion, the daughter sought extensive relief which includes the disqualification of the bank from its appointment as executor of his father’s will and the prohibition of the subject law firm from acting as counsel to the bank and participating in the proceedings other than serving as witnesses. The bank objected to the daughter’s cross-motion, but the Surrogate, despite granting preliminary letters of administration to the bank, ruled that a hearing should be held in relation to the eligibility of the bank to be made as permanent executor and trustee. The Surrogate court also ruled that a hearing should be held to determine whether the law firm in question should be disqualified as the bank’s attorneys in the validation proceeding. However, a New York Probate Lawyer said it was an abuse of discretion for the Surrogate to require a hearing under the circumstances herein. The Surrogate directed, and the court affirmed, that the bank will be designated as permanent executor and trustee. The bank promptly complied with the directives of the Surrogate’s Court Procedure Act who dealt with the qualification of the executor. In addition, a proposed ruling and counter-ruling, and even the suggested the counter-ruling offered by the daughter which named the bank as the recipient of the letters of administration and trusteeship were submitted to the Surrogate’s Court. Indeed, the daughter failed to throw in any objection until the bank applied by means of the order to show cause for the issuance of the letters after the Surrogate had not acted on the ruling or counter-ruling. Yet, Manhattan Probate Lawyers said her papers do not allege any facts imposing that the bank be declared ineligible.

The law is established that the person who made the will’s selection of an executor must be given great regards and that the Surrogate’s power to refuse to grant letters is limited by law. Thus, the grounds for the Surrogate declining to issue letters are no broader than those specifically contained. Where, as herein, the party in opposition has not provided any facts for declaring the bank ineligible, no hearing is authorized, and the objections should have been summarily dismissed. Further, a potential conflict of interest between an executor and a party interested in the property, or the executor thereof, as the daughter claims to exist in the instant situation, does not warrant the denial of letters to, or removal of an executor. Rather, it is actual misconduct, not a conflict of interest that justifies the removal of an executor. In any event, none of the purported conflicts of interest asserted by the daughter, such as proper reimbursement by the executor of one property from the other property and the possible enhancement of the assets of one property over that of the other, raises any questions about the bank’s eligibility since these issues can be resolved in an accounting. Similarly, the daughter’s claim that the executor of the husband’s property should commence suit against the bank’s attorneys appears to be founded upon nothing more than the previous litigation between her and her mother, who was also represented by the same law firm and which culminated in the daughter’s removal as preliminary executor and her disqualification as permanent executor and trustee of the property of the husband. However, the daughter’s personal antipathy to the law firm scarcely presents a legally apprehensible basis for disqualifying it from now serving as the bank’s counsel and depriving the bank of the right to retain the attorney of its choice merely because of an adversary’s claim of a potential conflict of interest.

Finally, the daughter’s provisional allegations of disregard and misconduct by the bank do not state any grounds for denying issuance of the letters. In effect, she contends that the bank’s supposed willingness to give a property guaranty to another bank, the lender for the family business, demonstrates inconsideration. Considering that the bank had not yet obtained either preliminary or permanent letters in her father’s property at the time that the daughter made her accusation, her assertion is entirely baseless. As for the claim that the bank is guilty of misconduct simply refers to other misconduct in the execution of his office but the bank has thus far been unable to perform its office of executor or trustee.

Consequently, for all of the foregoing reasons, the Surrogate’s Court improperly ordered that a hearing be held and should, instead, have granted the application by the bank for permanent letters of administration and trusteeship.

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