Opinion
No. 2014–379158/A.
09-30-2014
Probate Proceeding, WILL OF Janette Ann CURRAN, a/k/a Janette A. Curran, Deceased.
Bonnie Lawston, Esq., Huntington Station, for estate. Mirtoznik & Associates, E. Meadow, for Edward Curran.
Bonnie Lawston, Esq., Huntington Station, for estate.
Mirtoznik & Associates, E. Meadow, for Edward Curran.
Opinion
EDWARD W. McCARTY III, J.
Before the court is an application filed on April 15, 2014 by Kimberly Curran, the nominated executor under the will of Jannette Ann Curran, for preliminary letters testamentary in the context of a probate proceeding, along with a notice of settlement and a proposed order. Objections were filed to the notice of settlement.
BACKGROUND
Jannette Ann Curran (the “decedent”) died on March 1, 2014, survived by four children: Kimberly Curran, the petitioner; Edward W. Curran, the objectant; Peggy Y. Felton; and Tina Curran (“Kimberly,” “Edward,” “Peggy,” and “Tina”). The decedent left a will dated December 23, 2006, in which she nominated Kimberly to serve as executor and Edward as the successor executor. Under the terms of the will, decedent's four children are to share equally in her residuary estate.
Kimberly and Edward each filed a petition for the probate of decedent's will, with Edward requesting that letters testamentary be denied to Kimberly and be issued to Edward as “substitute executor.” Peggy and Tina filed waivers and consents to the appointment of Edward as executor. At the same time that Kimberly filed her petition for probate, she filed the present petition for preliminary letters testamentary.
In his objections, Edward claims that Kimberly is incompetent to execute the duties of an executor by reason of improvidence and dishonesty. In support of this contention, Edward alleges that Kimberly (1) was recently thrown off an airplane for yelling obscenities and threats; (2) barricaded herself in decedent's home upon arriving in New York after decedent's death; (3) disposed of some of the contents of decedent's home onto a snowy front lawn; and (4) wrote in lipstick on the windows of decedent's home, revealing personal data of the other beneficiaries and using profane language. In addition, Edward claims that decedent's two television sets and silverware are missing. Edward further claims that there are tax liens pending against Kimberly.
Kimberly did not respond to the objections.
ANALYSIS
As this court noted in a prior decision, the purpose of SCPA 1412 is “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 [and] to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis” (Matter of Mandelbaum, 7 Misc.3d 539, 541 (Sur Ct, Nassau County 2005). “Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest” (id. ).
It is well settled that a testator's choice of executor is entitled to great deference. “[T]he testator ... enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be disregarded.” (Matter of Leland, 219 N.Y. 387, 393 [1916] ) and, under SCPA 1412, once process has issued in the probate proceeding the court must issue preliminary letters “to the person or persons who appear to the court to be entitled thereto” (SCPA 1412[3][a] ). Unless material issues of wrongdoing were raised, the court is required to issue preliminary letters testamentary to petitioner once process issued and the petitioner filed the affidavits required by SCPA 708 (Matter of Rattner, 107 AD3d 600, 600 [1st Dept 2013], citing SCPA 1412[3][a] and SCPA 707[1] ). The courts will honor a testator's selection of a fiduciary, including on a temporary basis, except where there are material and genuine allegations of wrongdoing or misconduct (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct, Nassau County]; Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2 [Sur Ct, Nassau County]; Matter of Fordham, NYLJ, Dec. 16, 1998, at 22, col 6 [Sur Ct, Bronx County]; Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 35 [Sur Ct, Kings County] ). However, where a serious question has been raised concerning the eligibility of the nominated fiduciary, the court may deny preliminary letters (Matter of Bayley, 72 Misc.2d 312 [Sur Ct, Suffolk County 1972], affd 40 A.D.2d 843 [2d Dept 1972], appeal dismissed, 31 N.Y.2d 1025 [1973] ). Conclusory allegations concerning a fiduciary's lack of fitness to serve will not result in the denial of preliminary letters (Matter of Vermilye, 101 A.D.2d 865 [2d Dept 1984] ; Matter of Piterniak, NYLJ, Sept. 20, 2002, at 23, col 3 [Sur Ct, Suffolk County]; Matter of Rella, NYLJ, Mar. 16, 1999, at 28, col 5 [Sur Ct, Westchester County] ). Similarly, hostility between the parties will not result in the court's denial of preliminary letters to the nominated executor (Matter of Rattner, 107 AD3d 600, 601 [1st Dept 2013] ).
The allegations raised by Edward, while troubling, are not sufficient to deny Kimberly's application for preliminary letters on the grounds that her appointment would present a serious endangerment of the estate. At the same time, they are sufficiently serious to raise concerns regarding Kimberly's ability to manage the decedent's estate in an appropriate and responsible manner.
Under the terms of decedent's will, Kimberly is nominated and appointed to serve as executor without a bond. However, 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.
After weighing all of the above considerations, the court grants Kimberly's application for preliminary letters, subject to her posting a bond in the amount reflected in paragraph 6 of the application (see SCPA 1412[5] ). Upon Kimberly's filing of the bond in the designated amount, the court will sign the proposed order granting preliminary letters.
CONCLUSION
Petitioner's application for preliminary letters testamentary is granted upon the filing of a bond.
This constitutes the decision and order of this court.