Matter of Walker
Annotate this CaseDecided on February 18, 2009
Sur Ct, Kings County
In the Matter of the Administration Proceeding, Estate of Dave Walker, Deceased.
4353/2008
For Petitioner (Shirley Shivers):
Johnson Liebman, LLP
305 Broadway, Suite 801
New York, New York 10007
For Cross-Petitioner (Raymond Walker, Sr.):
Putney, Twombly, Hall & Hirson LLP
521 Fifth Avenue
New York, New York 10175
For Cross-petitioner (Raymond Walker, Jr.):
Bosco Law Firm, LLC
110 Wall Street, 11th Floor
New York, New York 10005
Guardian ad Litem:
Andrew M. Friedman, Esq.
Friedman, Khafif & Sanchez, LLP
16 Court Street, Suite 2600
Brooklyn, New York 11241
Diana A. Johnson, J.
In this administration proceeding, the decedent was survived by his mother,
Bernice Walker, and his father, Raymond Walker, Sr. The decedent's sibling, Shirley A. Shivers
has petitioned for letters of administration. Her application is supported by a waiver and consent
allegedly executed by Bernice Walker and requests that Raymond Walker, Sr. be disqualified as
a distributee. Raymond Walker, Sr. has filed objections to the petition and seeks to serve as
co-administrator along with decedent's sibling, Raymond Walker, Jr. The objections of Raymond
Walker, Sr. contain, inter alia, allegations that Bernice Walker has been mentally
disabled for years, that her hands are deformed and she is unable to sign documents.
In response to the allegations of Raymond Walker, Sr., the court appointed a guardian ad [*2]litem to investigate and assist the court in determining whether Bernice Walker has the capacity to represent her own interests in this proceeding. The guardian ad litem has filed his report.
Shirley A. Shivers has now petitioned for letters of temporary administration. She states that the decedent's estate contains three rental properties located in Brooklyn, New York. She alleges that she has been intimately involved in the maintenance of the properties, including incurring out-of-pocket expenses. She alleges that Raymond Walker, Sr. has taken no steps to ensure the proper functioning of the properties and is physically unable to maintain or even visit the properties due to his advanced age. She further alleges that Raymond Walker, Jr. is located in Albany, New York and has a limited ability to visit and maintain the properties.
Raymond Walker, Sr. and Raymond Walker, Jr. also seek to serve as temporary co-administrators and filed objections to Shirley A. Shivers' petition for letters of temporary administration. They allege that Bernice Walker lacked the mental capacity to execute the waiver and consent dated November 12, 2008 in favor of Shirley A. Shivers' appointment as administrator and that Bernice Walker has been mentally ill for years. They argue that Shirley A. Shivers is ineligible to serve due to dishonesty, improvidence and want of understanding. They further argue that Raymond Walker, Sr. did not abandon the decedent but maintained a relationship with the decedent and visited him on a regular basis.
After his investigation, the guardian ad litem reported that it is clear that Bernice Walker is incapacitated and does not understand the nature of the proceedings.
The parties have presented a number of serious issues for the court to consider, some of which can only be determined after a full hearing. In the meantime, the parties all agree that a fiduciary is required to maintain and preserve estate assets pending the ultimate determination of this proceeding. Where the court anticipates a delay in the proceedings, letters of temporary administration may be issued for the administration and management of estate assets (SCPA 901). The dispute over the standing and the eligibility of the petitioner and cross-petitioners to serve as fiduciaries will necessarily delay the issuance of letters. The three pieces of real property that require ongoing maintenance require the appointment of a temporary fiduciary for their preservation.
While the court has little discretion in the statutorily mandated appointment of eligible distributees in an administration proceeding, appointment of a temporary administrator is in the sound discretion of the surrogate (Estate of Tiffany, NYLJ, Jul. 20, 2000 at 30, col 3 [Sur Ct, Westchester County]). Unlike in the selection of an administrator, no class of persons is entitled to a priority in the selection of temporary administrator (Matter of McGuire, 47 Misc 2d 158 [Sur Ct, Nassau County 1965]).
The parties each allege that the other is ineligible to serve as a fiduciary in this estate. Shirley A. Shivers has alleged that Raymond Walker, Sr. should be disqualified as a distributee in this estate due to his abandonment of the decedent and accordingly his petition for letters of administration along with Raymond Walker, Jr. should fail. Raymond Walker, Sr. and Raymond Walker, Jr., both allege that Shirley A. Shivers is ineligible to serve due to dishonesty, improvidence and want of understanding. They allege that Bernice Walker lacked the mental capacity to designate Shirley A. Shivers to serve as fiduciary and thus her petition must fail.
Where the allegations against the appropriateness of the appointment of a fiduciary are serious and substantial in nature and the circumstances require the appointment of a fiduciary to [*3]maintain the estate assets pending ultimate determination in the proceedings, the courts have appointed a neutral party to preserve and manage estate assets until a permanent fiduciary may be appointed (see Estate of Scamardella, 238 AD2d 513 [2d Dept 1997]; see also, Estate of Smith, 71 Misc 2d 248 [Sur Ct, Erie County 1972]). The parties' serious and contentious allegations of impropriety and lack of standing with regards to the underlying administration applications as well as the clear need for a temporary fiduciary to preserve and maintain estate assets, warrants the appointment of a neutral party to protect the interests of the decedent's estate, pending the determination of this proceeding. Accordingly, the court, in the exercise of its discretion, appoints the Public Administrator of Kings County as temporary administrator of this estate. Letters of temporary administration shall issue to the Public Administrator of Kings County forthwith.
The appointment of Andrew M. Friedman, Esq. as guardian ad litem in this proceeding is extended and expanded to include the protection of the interests of Bernice Walker throughout this proceeding.
This constitutes the decision and order of the court.
_________/ s /_____________
HON. DIANA A. JOHNSON
S u r r o g
a t e
Dated:Brooklyn, New York
February 18, 2009
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