Opinion
2100/2003.
Decided March 26, 2004.
In this contested probate proceeding, the court is called upon to decide various motions made respectively by Joanne Zaccaria, the nominated executor, and Edward Pennington, the sole legatee of the estate. All applications made to the court were deemed submitted motions pursuant to a stipulation. Extensive oral argument was had before the court on February 5, 2004.
Decedent Paula Venezia died on March 9, 2003 at the age of 85, leaving an estate valued at approximately one million dollars. Petitioner Joanne Zaccaria, decedent's goddaughter, commenced the instant probate proceeding on May 22, 2003, seeking probate of an instrument dated November 15, 1995, alleged to be the Last Will and Testament of decedent Paula Venezia. The propounded instrument bequeaths decedent's entire estate to her nephew and sole distributee, Edward Pennington; it appoints petitioner, Joanne Zaccaria, as executrix. On October 7, 2003, Mr. Pennington, represented by Pamela A. Elisofon, Esq., filed objections to the appointment of Joanne Zaccaria as executrix and asked that the portion of the will appointing Joanne Zaccaria as executrix be denied probate due to its being procured by undue influence.
Joanne Zaccaria has applied for preliminary letters testamentary. Edward Pennington has moved for an order staying issuance of preliminary letters testamentary during the pendency of this proceeding; granting him summary judgment denying letters to Joanne Zaccaria, disqualifying her from serving as executrix of this estate and denying probate to Paragraph Third of the propounded instrument appointing Joanne Zaccaria as executrix; appointing himself administrator c.t.a.; disqualifying Vaneria Sesti and Alfred Sica as attorneys for the estate; and denying attorney fees and commissions to Ms. Zaccaria and her chosen counsel. The nominated executrix has moved for the appointment of a guardian ad litem for Edward Pennington and vacatur of any stay on the grant of preliminary letters. Both parties, pursuant to a stipulation, have submitted the motions to the court for decision.
The court notes that petitioner is represented in this matter by Vaneria Sesti and Alfred Sica, Esq. and that Mr. Sica is the attorney-draftsman of the aforesaid instrument. Mr. Sica also served with the decedent as co-conservators for decedent's predeceased sister, Roseanna DeLaune, in New York County. The co-conservators in that proceeding were represented by Veneria and Sesti. The only distributees of Roseanna DeLaune were decedent Paula Venezia and objectant Edward Pennington.
The court first turns its attention to the application for appointment of a guardian ad litem for objectant Edward Pennington. SCPA 402 governs appearances for infants, incompetents, conservatees or persons under disability. SCPA 402 (2) provides that "a person under disability shall appear by a guardian ad litem where no appearance is made. . . . or where the court so directs because of possible adversity or conflict of interest or for other cause." SCPA 402 (2) applies to any incapacitated person who for any reason is incapable of adequately protecting his or her rights. SCPA 103 (25) defines an incapacitated person as "any person who for any cause is incapable adequately to protect his or her rights. . . ." ( See Turano and Radigan, New York Estate Administration § 7.02 [b] [1] at 288 [2004 ed].)
Petitioner argues that the appointment of a guardian ad litem is required for Mr. Penningon because of unspecified disabilities and because he has an alleged history of "creating unnecessary litigation while making slanderous allegations." The court notes that Mr. Pennington claims certain physical disabilities that supposedly prevent him from traveling from his home in Florida to New York and has requested an accommodation for his physical disability pursuant to the Americans with Disabilities Act. It is not disputed that Mr. Pennington requested a guardian ad litem in the prior litigation in the DeLaune conservatorship in New York County Supreme Court involving Mr. Pennington, decedent and Mr. Sica. Petitioner's counsel also calls into question Mr. Pennington's mental abilities because Mr. Pennington refused a disbursement from the DeLaune estate after Ms. DeLaune's death. Therefore the petitioner asks for the appointment of a guardian ad litem to, at minimum, determine Edward Pennington's capacity in this matter.
It is well-settled that courts have a duty to protect litigants under a disability who have not been declared incompetent but who appear to be incompetent (see Sengstak v. Sengstak, 4 NY2d 502). However, the record submitted in this matter demonstrates that, while Mr. Pennington may be cantankerous and litigious, he certainly does not appear to be incompetent or unable to adequately protect his rights. He has retained counsel, has substantially cooperated with her and has participated in the litigation before this court. Mr. Pennington has provided the court with extensive, neatly handwritten affidavits in cooperation with his counsel. The court has reviewed both Mr. Pennington's submissions in this case and copies of excerpts submitted in the New York County conservatorship proceeding. The handwritten submissions of Mr. Pennington appear to be coherent, and were, apparently, an effort by him to protect what he perceived to be his rights. While Mr. Pennington's submissions are often caustic and cynical, it cannot be gleaned from his generally well-written, if somewhat lengthy, papers that he cannot adequately protect his rights. In addition, Mr. Pennington was able to participate in oral argument upon his request via speakerphone. During the oral argument he abided by the court's directives and, when questioned by the court, responded appropriately concerning his understanding of the proceedings. Mr. Pennington also has clearly been working closely with his chosen counsel.
Petitioner's counsel's argument that Mr. Pennington should have a guardian ad litem in this proceeding because he requested a guardian ad litem in the New York County conservator's accounting proceeding, is unpersuasive. First, the court notes that both Mr. Sica and Vaneria Sesti, who represent petitioner in this case, opposed the application of Mr. Pennington, who was then pro se, for a guardian ad litem in the Supreme Court conservatorship matter. Mr. Pennington credibly avers that he only sought appointment of a guardian ad litem in the New York County matter due to physical disabilities that prevented his travel to New York City and that, additionally, at that time, he was without funds to retain counsel.
Mr. Pennington also credibly explains that he refused partial distribution of $50,000 from the DeLaune estate proceeds because he was receiving public benefits at that time and the receipt of these funds could have jeopardized his benefits. It is uncontroverted that the petitioner's counsel herein refused to inform Mr. Pennington about the amount of funds that he would ultimately receive from the DeLaune estate, and Mr. Pennington, therefore, refused the disbursement of funds without being able to judge whether the funds in the estate were sufficient to enable him to give up public benefits. (The court notes that while such tactics are facially rational, they may not be effective. See Matter of Tutino v. Perales, 153 AD2d 181; Molloy v. Banc, 214 AD2d 171; Matter of Little, 256 AD2d 1152.) Now that Mr. Pennington will receive sufficient funds to obviate the need for public assistance, he has received funds from the DeLaune estate and he has retained counsel of his own choosing.
Counsel for petitioner has also argued that appointment of a guardian ad litem would prevent Mr. Pennington from engaging in vexatious litigation against them in this estate and in the DeLaune matter. This argument is also without merit. Even if the court were to appoint a guardian ad litem for Mr. Pennington, he would still be able to retain his own counsel and engage in litigation. In Matter of Bernice B., 176 Misc 2d 550, cited by petitioner, the court held that, despite the court's appointment of a guardian ad litem for an incapacitated person who had not been declared mentally incompetent, such person had the right to be heard as a party and veto any settlement offer ( see Sengstak v. Sengstak, cited supra).
Based on the ample record submitted, including the court's speakerphone conversations with Mr. Pennington at oral argument in open court, the court finds that Mr. Pennington has the mental capabilities to protect his rights, notwithstanding his alleged physical incapacities (see Southern Industries Inc. v. Esskay Fabrics, 81 AD2d 647). Accordingly, the application for the appointment of a guardian ad litem for objectant is in all respects denied.
The court now turns to the objectant's requests for relief concerning the appointment of Joanne Zaccaria as preliminary executrix and executrix. In addition to asking this court to deny probate of Paragraph Third of the will appointing Ms. Zaccaria due to undue influence having been exercised upon the testatrix and further seeking her disqualification due to her alleged improvidence and dishonesty, objectant argues that the hostility between him and the nominated executrix and her chosen counsel mandates denial of her appointment as executrix of this estate. He asks that letters of administration c.t.a. be granted instead to him as sole legatee under the will.
Normally, a nominated executor under a will is entitled to preliminary letters testamentary, even though objections are filed ( see Matter of Vermilye, 101 AD2d 865). This rule is designed to avoid a contest within a contest, absent a strong showing of unfitness of the nominated fiduciary or threat of loss of the assets of the estate. The Appellate Division in Vermilye, supra, held that "courts are required to exercise the power of removal sparingly and to nullify the testator's choice only upon a claim that misconduct endangers the estate." While the rule in favor of granting letters to a nominated fiduciary under a will is a strong one, it is not without exceptions. In rare cases, courts can and have overridden the choice of a nominated executor where there is such acrimony between the nominated executor and beneficiaries that it jeopardizes the interest of the beneficiaries and the proper administration of the estate. In Matter of Thompson, 232 AD2d 219, the Appellate Division held that, "Although, in most circumstances, the testratrix has the right to determine who was most suitable among those legally qualified to settle her affairs, and her selection is not be lightly discarded, it is well settled that the Surrogate may disqualify a person from receiving letters of administration where the friction between such a person and a beneficiary . . . interferes with the proper administration of the estate, and future cooperation is unlikely." ( See also Harris New York Estates Vol 1 § 6.171 [5th ed].)
In Matter of Rad, 162 Misc 2d 229, the Surrogate held that a nominated fiduciary may be disqualified from serving if the record reveals that acrimony and disharmony are such that it jeopardizes the interests of the beneficiaries and the proper administration of the estate ( see also Matter of Philip Posner, NYLJ, May 29, 1998, at 29, col 4).
The extensive record submitted herein includes voluminous submissions demonstrating extreme acrimony between Mr. Pennington, the sole legatee of this estate, and the nominated executrix, Ms. Zaccaria, and her counsel in this matter. ( See transcript of February 5, 2004 oral argument, at 3, lines 12-16; at 19, lines 11-16; at 24, lines 4-12; see Spanos affirmation of December 23, 2003, at 16, para 2; see Sica affirmation of October 30, 2003, at 6, para 13; at 7, para 15; at 8, paras 17 and 18; at 15, para 30; see affidavit of Edward Pennington, sworn to January 21, 2004; affirmation of Pamela Elisofon dated December 24, 2004.) It also reveals the tortuous, extensive, frequently hostile litigation that took place in the DeLaune conservatorship proceeding between Mr. Pennington, Mr. Sica and Vaneria Sesti, the present counsel for the nominated executrix ( see appendix submitted by Pennington). Based on this record, the court concludes that the relationship between Ms. Zaccaria and her counsel and Mr. Pennington, the sole legatee of this estate, is palpably poisoned and the hope of cooperation between the parties is, at best, vain. (In DeLaune, Mr. Sica was Ms. DeLaune's co-conservator and Vaneria Sesti represented both co-conservators.)While the choice of a testatrix should not be disregarded lightly in this case, the record here shows such an abiding enmity between Mr. Pennington and the nominated executrix and her counsel as to warrant denial of letters of any type to Ms. Zaccaria. In Matter of Jurzykowski, 36 AD2d 488, the Appellate Division affirmed denial of letters to a successor trustee based on hostility between the nominated fiduciary and trust beneficiaries, as demonstrated by a record based on submitted papers. Here the papers submitted evidence a similar, rational hostility on the part of the sole beneficiary toward the nominated executrix and her counsel.
Based upon the record, including the proof submitted, the court finds that permitting Ms. Zaccaria to serve as executrix with counsel who have clearly manifested (in oral argument in their submissions to the court) an abiding disdain for Mr. Pennington would be to the detriment of this estate. In the final analysis, all the assets of this estate belong to Mr. Pennington and he is entitled to them pursuant to the decedent's will without any trust or limitation being imposed. Ms. Zaccaria has no interest in this estate other than being the nominated executrix. If the litigation in the DeLaune conservatorship proceeding is any forecast of what would result if Ms. Zaccaria were appointed, with Alfred Sica, Esq. and Veneria and Sesti serving as her retained counsel, this estate would be subject to endless litigation and expense.
Accordingly, the motion for summary judgment of Mr. Pennington is granted to the extent that the court disqualifies Joanne Zaccaria from serving as executrix of this estate as being otherwise unfit for the execution of office under the particular circumstances of this case ( see SCPA 707 [e]; Harris New York Estates Vol 1 § 6.171 [5th ed]). In light of the foregoing finding, the court need not reach the issue of whether the clause of the instrument which appoints Ms. Zaccaria executrix was procured by undue influence.
The instrument dated November 15, 1995 is admitted to probate. Letters of administration c.t.a. shall issue to Edward Pennington upon his duly qualifying according to law. All other motions not decided herein are denied at this time.
Settle decree.