Matter of Hoelzer

[*1] Matter of Hoelzer 2007 NY Slip Op 51037(U) [15 Misc 3d 1138(A)] Decided on May 23, 2007 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2007
Sur Ct, Nassau County

In the Matter of Probate Proceeding, Will of Evelyn May Hoelzer a/k/a Evelyn Hoelzer, Deceased.



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The appearance of counsel are as follows:

Timothy O'Rourke, Esq.

O'Rourke Seaman, LLP

6800 Jericho Turnpike

Suite 200 AW

Syosset, NY 11791

(Attorney for Petitioner, Richard Hoelzer)

Rita Stein, Esq.

200 Old Country Road

Suite 590

Mineola, NY 11501

(Attorney for Nominated Successor Executor, Jeanne Schieck)

John B. Riordan, J.

Before the court in this pending probate proceeding are Jeanne Schieck's application and Richard Hoelzer's cross-application for preliminary letters testamentary. Jeanne is a niece of the decedent. Richard is one of the decedent's brothers. Jeanne is nominated as contingent executor under the decedent's last will and testament dated September 5, 1986 in the event Richard, who is the nominated executor, and the decedent's nephew, Arthur C. Schilling, Jr., the first named contingent executor, predeceased the decedent, failed to qualify, or if the office of executor is otherwise vacant. Arthur predeceased the decedent.

The decedent, Evelyn May Hoelzer, died on October 13, 2006, without a spouse or children. Separate petitions for the will's admission to probate have been filed by Richard and Jeanne, each seeking to be appointed as executor. The propounded will dispenses with the filing of a bond.

In support of her application for preliminary letters testamentary, Jeanne alleges that Richard is duplicitous, lax and dishonest. She also alleges that, while the decedent was incapacitated by dementia and Alzheimer's Disease, Richard conspired with his brother, John Hoelzer, to isolate the decedent from her friends and family, exerted undue influence over her and robbed her of her property "with an intention to deprive her family and heirs of their rightful share of her estate."

It appears that decedent appointed John as her attorney-in-fact on March 25, 2006. In his capacity as her attorney-in-fact, John conveyed title to the decedent's residence to himself, his daughter, and Richard shortly before decedent's death.

Jeanne asserts that preliminary letters testamentary should be issued to her immediately so she can discover and protect the assets she asserts belong to the estate before Richard and John can secrete and destroy them. Annexed as an exhibit to Jeanne's application for preliminary letters is an affidavit by Marjorie Hoelzer Schilling, sworn to on March 19, 2007, in support of Jeanne's application. Marjorie is the sister of the decedent. She essentially makes the same allegations as does Jeanne.

Richard opposes Jeanne's application for preliminary letters testamentary. In his affidavit, sworn to on March 26, 2007, he denies the allegations of impropriety Jeanne and Marjorie have made against him, and states that he intends to "fully investigate and discover all assets belonging to the decedent's estate, whether or not said assets were transferred from the [*2]decedent's name prior to her death."

A testator's wishes regarding the appointment of a fiduciary even on a temporary basis 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 Fordham, NYLJ, Dec. 16, 1998, at 22, col 6 [Sur Ct, Bronx County]). Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue (Matter of Bayley, 72 Misc 2d 312 [Sur Ct, Suffolk County 1972], affd 40 AD2d 843 [2d Dept 1972], appeal dismissed, 31 NY2d 1025 [1973]). When there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that dishonesty makes him ineligible under SCPA 707 (Matter of Scamardella, 169 Misc 2d 55 [Sur Ct, Richmond County 1996], affd 238 AD2d 513 [2d Dept 1997], appeal dismissed, 90 NY2d 935 [1997]; Matter of Roth, NYLJ, Sept. 16, 1999, at 35, col 5 [Sur Ct, Kings County]; Matter of Kunicki, NYLJ, Aug. 30, 1999, at 30, col 6 [Sur Ct, Kings County]). Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters (Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]; Matter of Nigro, NYLJ, Feb. 3, 2003, at 23, col 3 [Sur Ct, Kings County]; Matter of Piterniak, NYLJ, Sept. 20, 2002, at 23, col 1 [Sur Ct, Suffolk County]).

Richard and Jeanne have petitioned separately to be appointed preliminary executor, each to the exclusion of the other. Here, however, under SCPA 1412, preliminary letters must issue to Richard alone as the nominated executor in the absence of good cause shown or serious misconduct which renders him unqualified (Matter of Roth, NYLJ, Sept. 16, 1999, at 35, col 5 [Sur Ct, Kings County]). Jeanne has failed to demonstrate "good cause" or serious wrongdoing that would permit the court to nullify the testator's choice of fiduciary. Accordingly, Richard's application for preliminary letters testamentary is granted and Jeanne's application is denied.

The allegations raised by Jeanne, if true, are serious. It appears that the more appropriate remedy would be for Jeanne, as special administrator, to commence a proceeding to discover assets that she claims should be part of the decedent's estate. Therefore, the court, based upon its broad equitable powers to convert or fashion a remedy upon the facts alleged, deems Jeanne's application as one for the issuance of limited letters of administration to her pursuant to SCPA 702(9) ( Matter of Nickolas, NYLJ, Apr. 27, 2005, at 27, col 2 [Sur Ct, Suffolk County]). Accordingly, limited letters of administration with respect to the decedent's estate shall issue to Jeanne upon duly qualifying according to law, without bond, said letters to be limited to prosecuting a discovery proceeding pursuant to SCPA 2102 and 2103.

Settle order on notice.

Dated: May 23, 2007

JOHN B. RIORDAN

Judge of the

Surrogate's Court