Opinion
No. 2014–635/A.
12-22-2014
In the Matter of the Probate Proceeding of the Will of Barbara A. HEROY, Deceased.
James R. McCarl, Esq., Montgomery, for Proposed Co–Executrix Linda J. Shedd. Gregory D. Supple, Esq., Lyons & Supple, Esqs., Wappingers Falls, for Proposed Co–Executrix Jacqueline Sandford.
James R. McCarl, Esq., Montgomery, for Proposed Co–Executrix Linda J. Shedd.
Gregory D. Supple, Esq., Lyons & Supple, Esqs., Wappingers Falls, for Proposed Co–Executrix Jacqueline Sandford.
Opinion
JAMES D. PAGONES, J.
In this probate proceeding concerning the propounded instrument purporting to be the Last Will and Testament of Barbara A. Heroy, one of the named proposed co-executrices, Linda J. Shedd, “objects”, pursuant to SCPA §§ 711 and 719, to letters testamentary being issued to Jacqueline Sandford, the other named proposed co-executrix. Linda Shedd also seeks removal of the Law Firm of Lyons & Supple as attorneys for the estate of the decedent. Proposed co-executrix Shedd also asks the Court to schedule a hearing to address the construction of the instrument and determine whether her co-executrix, Jacqueline Sandford, can read, write and understand English.
The following papers were considered:
Objections–Affidavit–Affidavit–Affirmation–1–14
Exhibits A–I–Affidavit of Mailing
Affirmation in Response–Exhibits A–B–Affidavit–15–20
Exhibit A–Affirmation of Service
The “objections” are decided as follows:
The Court will first address proposed co-executrix Shedd's objection to the issuance of letters testamentary to Jacqueline Sandford.
According to SCPA § 711 :
“... a co-fiduciary, creditor, person interested, any person on behalf of an infant or any surety on a bond of a fiduciary may present to the court having jurisdiction a petition praying for a decree suspending, modifying or revoking those letters and that the fiduciary may be cited to show cause why a decree should not be made accordingly ...”
Here, no letters have been granted to any fiduciary. Thus, reliance upon SCPA § 711 is wholly inapplicable to the facts at hand. Moreover, the Court concurs with proposed co-executrix Jacqueline Sandford that the document styled “objections” filed by Linda Shedd does not constitute a petition as is required by SCPA § 711. Furthermore, a proceeding to remove a fiduciary under SCPA § 711 is a special proceeding commenced by the filing of a petition (see SCPA § 203 ).
SCPA § 719 provides:
“... the court may make a decree suspending, modifying or revoking letters issued to a fiduciary from the court or removing a lifetime trustee or modifying or suspending the powers of a lifetime trustee without a petition or the issuance of process ...”
Again, the current application submitted under SCPA § 719 is premature as the decedent's will has not been admitted to probate and no letters have been issued to either of the nominated fiduciaries. At best, the application can be characterized as seeking “anticipatory disqualification.”
The Court will next address the demand for removal of the law firm of Lyons & Supple as attorneys for the Estate of Barbara A. Heroy. The basis for this argument is that the firm of Lyons & Supple drafted and supervised the execution of the propounded instrument and that hostility exists between the law firm and objectant Linda J. Shedd. Counsel for Linda J. Shedd cites the Second Department decision in the Matter of Venezia, 71 AD3d 905 (2nd Dept 2010) to support the argument for removal. The facts herein are clearly distinguishable from the facts of the Venezia proceeding. The Venezia proceeding involved the removal of an executrix, not a law firm. Moreover, proposed-executrix Linda J. Shedd's concerns about the possibility of the attorney draftsmen needing to testify at a future date is unavailing to support the current application for removal. Accordingly, any application for removal is untimely at this time.
Proposed co-executrix Linda J. Shedd next seeks a hearing to address the construction of the propounded instrument.
Pursuant to SCPA § 1420 :
“[a] fiduciary or a person interested in obtaining a determination as to the validity, construction or effect of any provision of a will may present to the court in which the will was probated a petition showing the interest of the petitioner, the names and post-office addresses of the other persons interested, the particular portion of the will concerning which petitioner requests the determination of the court and the necessity for construction.”
Here, the propounded instrument has not been probated, nor has the proposed co-executrix sought relief via petition. The Court should decide the probate issue first and then address any construction application (Lexis Nexis New York Estate Administration, Turano & Radigan, 2014 edition, § 3.11).
The last branch of the proposed co-executrix's “objections” seeks a hearing to address whether or not Jacqueline Sandford can read, write and understand the English language. Counsel for the objectant has not cited any authority whatsoever, whether by statute, court rule or case law, which would give this Court the authority to hold such a hearing at this time. The protocol the Court is willing to adopt is to decide in the first instance whether to probate the propounded instrument, and secondly, consider a petition for removal of nominated co-executrix Sandford pursuant to SCPA § 209 for whatever reason(s) the objecting proposed co-executrix wishes to articulate.
Accordingly, the proposed co-executrix Linda J. Shedd's “objections” are dismissed.
Counsel for proposed executrix Jacqueline Sandford is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.
The foregoing constitutes the decision of the court.