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Surrogate’s Court considered whether a nominated executor who objected to probate should be issued letters. In re Lublin, 43 Misc. 3d 721 (N.Y. Sur. Ct. 2013)


Typically, the court will honor a testator’s choice of executor unless that person is determined to be ineligible. In the case of In re Lublin, the Surrogate’s Court was asked to consider another reason to circumvent the wish of a testator as memorialized in their will.

In the case of In re Lublin, the court considered an issue that was of first impression in New York. The issue was whether the testator’s choice of a preliminary executor must be honored where his actions make clear that he does not support the admission of the will to probate.

Irving Lublin died on September 11, 2010. He was survived by his wife, Roselyn Lublin, and two children, Seth and Debra. The decedent left a will that disinherited Debra. Debra initiated a will contest, arguing that the will being offered for probate is the product of undue influence by Seth. She also argued that the decedent lacked testamentary capacity.

The decedent nominated his wife, Roselyn Lublin, and his son, Seth Lublin, as co-executors. In the event that one of the nominated co-executors cannot act or ceases to act, the decedent nominated his nephew, Dr. Michael Broder, and his tax attorney, Lisa Blaustein, to act as successor to either of them.

The Surrogate’s Court issued preliminary letters to Roselyn Lublin and Seth Lublin. However,  it was later determined that Roselyn Lublin was unable to serve as a co-executor. Seth Lublin thereafter sought an extension of the preliminary letters testamentary without notice to the nominated successor executors.

There are three issues for the court to consider:

  • Broder seeks the revocation of Seth Lublin’s letters based on the lack of notice.
  • Seth Lublin seeks the denial of preliminary letters testamentary to Dr. Broder on the grounds that Dr. Broder objects to probate based on unde influence

The court first considered Dr. Broder’s request that Seth Lubin’s letters be revoked. The court declined to revoke Seth’s letters noting that while in failing to provide notice of the application for an extension of preliminary letters was a breach of fiduciary duty, not every breach warrants the drastic remedy of the revocation of letters.  See  Matter of Duke, 87 NY2d 465, 473 (1996).

Next, the court considered Seth Lubin’s request to deny preliminary letters to Dr. Broder should be granted. In the pending probate proceeding, Dr. Broder filed an affidavit that supported the objection to probate on the grounds of undue influence.

The court noted that any person who is nominated in a decedent’s will to serve as executor is not forced to accept the nomination. They can refuse to serve in the role for any reason. Here, Dr. Broder wants two inconsistent things. He wants to act as preliminary executor, and he also wants to will that nominated him to be rejected based on undue influence.

The court concluded that the actions of Dr. Broder that challenge the validity of the will amounted to an implied renunciation of his appointment. While this issue has never been directly addressed in New York, other jurisdictions have found where a co-executor questioned the validity of a will, they were found to have constructively renounced the appointment. See Grant v Osgood, 241 SC 104, 109, 127 SE2d 202, 205 (1962).

Here, although the court even though Dr. Broder impliedly renounced his right as a nominated preliminary executor to participate in the proceeding to probate the decedent’s last will and testament, it was still loathe to deprive him of the right to participate in the administration of the estate as preliminary executor as it was the decedent’s wish that he be appointed. Instead of granting Seth Lubin’s request to deny Dr. Broder’s application, the court decided to grant them with limited authority. He would not have authority to participate in the proceeding to probate the will which he believes to be invalid. However, he would have authority to actions related to the administration of the estate.



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