Opinion
No. 2011–2324.
2012-10-24
In the Matter of the ESTATE OF Leon HERNESH, Deceased.
McLaughlin & Stern, LLP (Mary S. Croly, Esq., of counsel) for Mae Marlow, preliminary executor. Joanne Fanizza, P.A., for Bruce Solomon, nephew.
McLaughlin & Stern, LLP (Mary S. Croly, Esq., of counsel) for Mae Marlow, preliminary executor. Joanne Fanizza, P.A., for Bruce Solomon, nephew.
LEE L. HOLZMAN, J.
This application by the preliminary executor for an order extending for a second time the preliminary letters testamentary, that originally issued to her on September 22, 2011 and were extended on April 2, 2012, is opposed by the decedent's nephew.
The decedent died on August 3, 2011. The proponent is bequeathed the entire residuary estate under the propounded instrument dated June 14, 2010, which expressly disinherits the decedent's nephew and sole alleged distributee. The nephew, who has been conducting discovery pursuant to SCPA 1404, has not filed objections to the instrument to date. He opposes the application alleging, inter alia, that the proponent: (1) is not a distributee and befriended the decedent and his family through a Holocaust survivor agency where she was formerly employed; (2) exerted undue influence over the decedent when he suffered from dementia; (3) has already collected all available assets and paid estate debts so no extension is necessary; and, (4) paid excessive and unsubstantiated sums to her counsel and the New York State Commissioner of Taxation and Finance.
The proponent's counsel replies: (1) the proponent's relationship to the decedent is irrelevant to the instant application to extend the preliminary letters, as she is the nominated executor, and the court should honor the decedent's wishes; (2) there remain uncollected assets from the estate of the decedent's predeceased brother, whose will is also being contested by the nephew who was disinherited by that brother, another uncle; (3) the estimated estate tax payments reflect anticipated assets to be received from the brother's estate; and, (4) the fees paid to counsel were largely incurred in the course of estate administration and the discovery requested by the nephew to date.
Courts are reluctant to turn opposition to preliminary letters into a “contest within a contest” (see Matter of Vermilye, 101 A.D.2d 865 [1984] ). Preliminary letters testamentary are issued prior to probate to provide for the immediate administration and protection of the assets of the decedent by the nominated executor in instances where there may be a delay in probate (see Matter of Bayley, 72 Misc.2d 312, affd 40 A.D.2d 843 [1972], lv. denied 31 N.Y.2d 1025 [1973]; see also Matter of Smith, 71 Misc.2d 248 [1972] ). When there is a challenge to the appointment of a nominated fiduciary, great weight is to be given to the person selected by the testator and the court will not nullify the testator's choice unless the existence of a statutory ground for disqualification is clearly established (see Matter of Lurie, 52 AD3d 575 [2009];Matter of Marsh, 179 A.D.2d 578 [1992], lv. denied 79 N.Y.2d 578 [1992]; Matter of Hargrow, 16 Misc.3d 1117[A], 2007 N.Y. Slip Op 51450[U] § 2007] ). Where there are allegations of waste, impropriety or mismanagement, an objectant must demonstrate that the estate suffered harm and that the proponent's alleged misconduct establishes unfitness to administer the estate (see SCPA 711[2]; Matter of Jordan, 52 AD3d 328 [2008]; Matter of Farquharson, NYLJ, June 29, 2009, at 38, col 3; Matter of Aragona, 13 Misc.3d 1221[A], 2006 N.Y. Slip Op 51930[U] [2006] ).
Here, the nephew has not met this burden because the petitioner is the nominated executor, there is no clear evidence of unfitness or waste, and she filed an inventory and offered a credible explanation of payments made for estate taxes and additional legal fees incurred because of the litigation commenced by the nephew. The only allegations of unfitness during the time the petitioner has acted as the preliminary executor from September 22, 2001 to date concern the alleged overpayment of taxes and attorney fees and the nephew is protected by the bond that the proponent is required to post.
Accordingly, the application is granted, and an order has been entered extending the preliminary letters testamentary issued to the proponent for a period of six months, conditioned upon her keeping in full force and effect a surety bond in the penal sum of $1,016,000.
Proceed accordingly.