Opinion
2012-370917
06-28-2013
Probate Proceeding, Will of Morris Goldman, a/k/a MORRIS GOLDMAN, a/k/a MICHAEL C. GOLDMAN, Deceased.
Jason L. Abelove, Esq. (for estate) Leslie Goldman (pro se)
Jason L. Abelove, Esq. (for estate)
Leslie Goldman (pro se)
Edward W. McCarty, J.
In this probate proceeding, the petitioner, Ronald Goldman, moves to dismiss the objections filed by the decedent's daughter, Leslie Goldman, to his appointment as trustee of the trusts created under the decedent's will. For the reasons that follow, the motion is granted.
The decedent, Morris C. Goldman, died on July 12, 2012, leaving a will dated June 17, 1988. The decedent was survived by his wife, Dorothy Goldman, and his two children, Ronald Goldman and Leslie Goldman. The will creates two trusts, one for the benefit of Dorothy, which is to be funded with 66-2/3% of the decedent's residuary estate, and the other a supplemental needs trust for the benefit of Leslie (hereinafter "Leslie's SNT") to be funded with 33-1/3% of the residuary estate. The trust for Dorothy's benefit provides that all of the income shall be paid to Dorothy at least quarterly, and the trustee, in his discretion, may invade principal for Dorothy's "health, support and maintenance" in the manner and to the extent to which she was accustomed at the decedent's death, considering her other resources. Dorothy also has a 5 and 5 withdrawal power. At Dorothy's death, the remaining principal is to be distributed 50% to Leslie's SNT and 50% to Ronald's issue, per stirpes.
Leslie's SNT is a standard supplemental needs trust intended to conform with EPTL 7-1.12. Leslie's SNT terminates upon Leslie's death and is payable to Dorothy, if she is then living, or if she is not then living, to Ronald's then living issue per stirpes. The trust may terminate sooner if: (i) Leslie is substantially gainfully employed for a continuous period of two consecutive years and an attending physician certifies in writing that her disability no longer prevents her from being substantially gainfully employed and competent to manage her own personal and financial affairs independent of her SNT or (ii) the Trustees, in their sole and absolute discretion, determine that it is no longer in Leslie's best interest to continue to hold the trust property in trust for Leslie after considering her mental and physical health and stability, her ability to earn income on her own, any other person's obligation to provide for her support plus the availability of all governmental entitlement benefit programs. Upon the earlier termination, the principal will be payable to Leslie outright.
The will nominates Ronald as executor and trustee of both trusts. Dorothy is nominated as a co-trustee of her trust. On October 24, 2012, Leslie filed an objection to: (i) Ronald's appointment as executor; (ii) Ronald's appointment as a trustee of Leslie's trust; and (iii) Ronald's appointment as a trustee of Dorothy's trust. After a conference before a member of the court's Law Department, the parties agreed that Leslie would withdraw her objection to Ronald being appointed as executor and the will would be admitted to probate. Leslie, however, still objected to Ronald's appointment as trustee of both trusts.
Ronald has now moved to dismiss Leslie's objections on the grounds that they are without merit. Ronald's counsel argues that Leslie fails to state any grounds under SCPA 707 warranting Ronald's disqualification as trustee, and that a testator's choice of fiduciary is entitled to great deference.
Leslie alleges that Ronald is unfit to serve as her trustee for the following reasons: (1) Ronald "intercepted" her call to her Uncle Joe; (2) Ronald insists that their mother and Leslie have no relationship; (3) Leslie would like a monthly or quarterly formal accounting of how her brother spends the money in the trust for Dorothy and she wants an intermediary to monitor the spending of Dorothy's trust; (4) Leslie is uncomfortable meeting her brother to "pick up cash, or to sign things," (5) Ronald promised that he would not act as trustee; (6) Leslie would like all court costs and legal costs to be paid by her brother, not out of the estate; (7) Leslie wants proof of a $5,000.00 check her brother alleges he sent her; (8) Ronald verbally and emotionally batters her; (9) Ronald contradicts himself; (10) Leslie and her mother have not spoken in 18 years and her brother is not willing to let her have a relationship with their mother; (11) Ronald threw out some of their parents' possessions that she wanted; (12) Ronald did not contact her after Hurricane Sandy or Winter Storm Nemo to see if she was okay; (13) Leslie is not comfortable giving Ronald a copy of her lease; (14) Leslie's car is old and she wants her father's car; (15) Leslie and her brother have had a "contentious relationship" since childhood when he chased Leslie around the house with a baseball bat; (16) Ronald would not give her money to help her move from an apartment when her landlord a "former Vietnam Vet Special Ops Alcoholic" threatened her; (17) Ronald did not give her money when her father was in the hospital which she needed for food, clothing, shelter, and medical care, including the dentist; (18) Ronald would not look over a new lease for Leslie; (19) Ronald's ability to invest the trust is impaired because he does not care about Leslie; (20) Ronald does not keep Leslie informed; and (21) Ronald refuses to provide her with assistance so she could keep her Vonage account.
Ronald disputes the allegations made by Leslie and argues that, even if the court accepted Leslie's opposition, there is no basis to disqualify him. In support of his concern for Leslie, he states that he advanced his own funds for Leslie's benefit, including paying her parking tickets, and he made sure Leslie rode in the limousine afer their father's funeral, encouraged her to sit shiva at his home, and picked Leslie up and gave her rides when necessary.
A testator's wishes regarding the appointment of a fiduciary will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (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 Fordman, NYLJ, Dec. 16, 1998, at 22, col 6 [Sur Ct, Bronx County]; Matter of Fruchtman, NYLJ, Nov. 28, 1997 at 35, col 1 [Sur Ct, Kings County]). Courts will not lightly set aside a decedent's choice of fiduciary (Matter of Mecko, 70 NYS2d 41 [Sur Ct, Broome County 1947]).
A"[d]ecedent's selection of a fiduciary must be given great deference and the power of the court to deny the issuance of letters to a nominated fiduciary is strictly circumscribed by statute. Courts should nullify a testator's choice only upon a clear showing of serious misconduct that endangers the safety of the estate. Unless the nominated fiduciary is disqualified under SCPA 707, he cannot be denied letters" (Matter of Cruz, NYLJ, Sept. 15, 2009 at 38, col 2 [Sur Ct, Kings County]).
The removal of a fiduciary is a matter within the discretion of the court (Stolz v New York Central R.R. Co., 7 NY2d 269 [1959]). Courts exercise this discretion only rarely, especially where they are called upon to remove a fiduciary chosen by the testator. In general, courts are reluctant to interfere with a testator's wishes regarding selection of a fiduciary. Thus, a court may "judicially nullify" the testator's choice of fiduciary "only upon a clear showing of serious misconduct that endangers the welfare of the estate; it is not every breach of fiduciary duty that will warrant removal of an executor" (Matter of Duke, 87 NY2d 465, 474 [1996] citing Matter of Israel, 64 Misc 2d 1035 [Sur Ct, Nassau County 1970]; Matter of Leland, 219 NY 387, 392 [1916]; Matter of Braloff, 3 AD2d 912 [2d Dept 1957], affd 4 NY2d 847 [1958]).
"Courts are also loathe to indulge a beneficiary's wish to dictate, at will or at whim, who the fiduciary should or will be. After all, where there is a clash between beneficiary and fiduciary, it is the latter who faces the potential for liability; it may be presumed therefore that the prospect of a surcharge will chasten the fiduciary to try to do right on an issue as to which the beneficiary him/herself is free to be wrong. As a corollary, a beneficiary should not be allowed to bootstrap his or her way to a new fiduciary by intentionally antagonizing the current fiduciary" (Matter of Atkins, 2010 NY Misc Lexis 3228 [Sur Ct, New York County 2010]; see also Matter of Graves, 110 NYS2d 763 [Sur Ct, Monroe County 1952]).
Moreover, while the court may disqualify a person from receiving letters where the friction between such person and a beneficiary interferes with the proper administration of the estate (see Matter of of Jurzykowski, 36 AD2d 488 [1st Dept 1971], affd 30 NY2d 510 [1972]; Matter of Thompson, 232 AD2d 219 [1st Dept 1996]), mere friction or hostility between such person and a beneficiary alone is not sufficient grounds for removal (see Matter of Edwards, 274 App Div 244, 247-249 [4th Dept 1948]; Matter of Miller, 48 Misc 2d 815 [Sur Ct, New York County 1965]; Matter of Venezia, 25 AD3d 717 [2d Dept 2006]).
In Matter of Graves (110 NYS2d 763, 767 [Sur Ct, Monroe County 1952]) , the court stated:
"As a matter of law however if the respondent trustees establish that they have in all respects conducted themselves properly as trustees and are competent to continue to act as such, the mere fact of friction between them and the beneficiaries is not sufficient cause for their removal - if it were, an obstreperous malintentioned beneficiary could cause the removal of a competent trustee through no fault on the latter's part"(id.)
If a beneficiary were permitted to force removal of a trustee on account of friction or hostility, the beneficiary could always, simply by arguing with the trustee, force the trustee out (id.).
In addition, as to the necessity of a hearing to inquire into the facts, the Second Department in Matter of Venezia (25 AD3d 717, 719 [2d Dept 2006]) stated:
"Notwithstanding the evidence demonstrating that there was friction and hostility in the relationship between the petitioner and her counsel, and the objectant, an evidentiary hearing should have been held to determine whether such friction and hostility would interfere with the proper administration of the estate - thereby warranting a departure from the express intent of the testatrix"
(see also Matter of Celauro, 2007 WOL 2174982, 2007 NY Slip Op. 3197[U] [Sur Ct, Nassau County]; Matter of Iskyan, NYLJ, Aug. 5, 1994, at 31, col 6 [Sur Ct, Nassau County]). In Matter of Venezia (2 Misc 2d 1008 [A] [Sur Ct, Kings County 2004]), the Surrogate's Court removed the executrix on the basis of friction with the objectant without a hearing. The matter was sent back to the Surrogate's Court for a hearing on the removal and the court found that removal was warranted (Matter of Venezia, 2007 NY Misc Lexis 7835 [Sur Ct, Kings County 2007]). The Second Department reversed in part (71 AD3d 905 [2d Dept 2010]), finding that the evidence adduced at the hearing demonstrated that the objectant was the source of the hostility and the record was "bereft of evidence that the petitioner was unqualified to serve . . . or that she committed misconduct" (id. at 906).
Here, Leslie's assertions do not demonstrate that there is sufficient friction or hostility interfering with the administration of the trust since the trust has yet to be funded.
Seemingly the gravamen of Leslie's objections is that her brother's lack of concern for her will affect his decision-making not only with respect to her trust, but also with regard to Dorothy's trust since she believes Ronald will spend down Dorothy's trust without any regard for her remainder interest. It is noteworthy that Ronald's children also are remaindermen of Dorothy's trust. Leslie asserts that this "friction" existed since their childhood. Thus, it appears that the decedent nominated Ronald knowing full well of his relationship with Leslie. The assertions made by Leslie are not only conclusory, but also some of her allegations are irrelevant to the issue of disqualification. It appears that Leslie desires to control the selection of the trustee not only of her SNT but also of Dorothy's trust as well. At this point, the allegations asserted by Leslie are insufficient to warrant a hearing. The court will not at this time interfere with the testator's choice of trustee. The motion to dismiss the objections is therefore granted.
This constitutes the decision and order of the court.
Settle order.
EDWARD W. McCARTY III
Judge of the
Surrogate's Court