Matter of Anderson
Annotate this CaseDecided on June 14, 2007
Sur Ct, Dutchess County
In the Matter of the Application of Amanda B. Anderson and Marianne E. Anderson, for a Decree Vacating and/or Revoking Letters Testamentary of the Last Will and Testament of Margaretta M. Anderson a/k/a Margaret M. Anderson, Deceased, Heretofore issued to Daniel F. Curtin, and Granting Other Relief
95815/07
AMY HOLZMAN, ESQ.
GUZOV OFSINK, LLC
Attorneys for Petitioners
600 Madison Avenue, 14th Floor
New York, New York 10022
ROBERT L. LACKAYE, ESQ.
Attorney for Executor
DANIEL F. CURTIN
90 Market Street
Poughkeepsie, New York 12601
THOMAS E. DIETZ, ESQ.
DIETZ & DIETZ, LLP
Attorneys for Residuary Legatee
SARAH A. COGAN
Two Cannon Street, Suite 207
Poughkeepsie, New York 12601
James D. Pagones, J.
Amanda B. Anderson and Marianne E. Anderson, intestate distributees and residuary
legatees named in the Last Will and Testament of Margaretta M. Anderson a/k/a Margaret M.
Anderson (decedent) have filed separate petitions but move jointly for an order (1) vacating the
decree entering the Last Will and Testament of the decedent into probate and granting letters
testamentary to Daniel F. Curtin (Curtin); (2) revoking the letters testamentary granted to Curtin
under the Last Will and Testament of the decedent; (3) suspending Curtin as executor under the
Last Will and Testament of the decedent during the pendency of this proceeding, from the
exercise of his powers and authority as such executor; and (4) awarding petitioners their
reasonable attorney's fees and costs in this proceeding.
BACKGROUND
The will is dated May 1, 2002. The decedent nominated Daniel F. Curtin, Esq. to
serve as executor of the estate. The decedent died testate on January 5, 2007. Curtin was issued
letters testamentary on March 8, 2007. Decedent's daughters, Amanda B. Anderson and Marianne
E. Anderson did not object to probate but now petition for Curtin's removal. The third remaining
residuary legatee, Sarah A. Cogan, does not challenge Curtin's appointment.
On November 9, 2005, Curtin pled guilty in the United States District Court for the Southern
District of New York to one misdemeanor count of unlawfully receiving a portion of real estate
settlement charges, a violation of the Real Estate Settlement Practices Act. (12 U.S.C.A.
§2607[b].) The Magistrate Judge ordered Curtin to pay a fine and a mandatory surcharge
but did not order Curtin to pay restitution. Curtin was not sentenced to any jail time or [*2]probation. The instant petition to vacate and/or revoke asserts two
grounds for the relief sought: (1) alleged failure to properly serve citation, and (2) alleged
ineligibility of the named executor.
PERSONAL
JURISDICTION
The Surrogate can vacate a probate decree if he
receives new evidence that raises the issue of the instrument's invalidity. (See Matter of
Deneau, N.Y.L.J., Aug. 19, 1987, at 13 col. 1 [Surr Ct Nassau County].) In her petition,
Amanda B. Anderson alleges that service upon her was improper and requests that this Court
vacate its prior decree, issue a new citation and direct Curtin to serve petitioner in accordance
with the relevant provisions of the CPLR and SCPA. In a letter dated March 8, 2007, petitioner's
attorney states that petitioner does not object to the probate of the will, but only to the
appointment of Daniel F. Curtin as executor. Neither of the instant petitions asserts any grounds
to challenge the validity of decedent's will.
Petitioner demands that the court vacate the decree admitting the will to probate even
though she articulates no basis to object to the validity of the will. Such an exercise would
constitute a waste of judicial resources and might be considered frivolous conduct. Petitioner's
objection to the appointment of Daniel Curtin may be properly addressed without vacating the
existing decree.
VACATING THE DECREE GRANTING LETTERS TESTAMENTARY
TO DANIEL F. CURTIN
A testator's selection of a fiduciary must be given great deference. The Surrogate's
power to refuse to grant letters is limited by statute.The grounds for the Surrogate to decline to
issue letters are limited to those specifically set forth in SCPA §§707 and 711. Under
SCPA §707, a person is ineligible to receive letters if he is convicted of a crime constituting
a felony under New York law. (Matter of Gulbrandsen, 11 Misc 3d 1073A [Surr Ct,
Dutchess County 2006]; Turano & Radigan, New York Estate Administration, 2007
Edition, §14.02[c]; SCPA §707[1][d].) This is not the case here. Even if petitioner had
objected prior to letters issuing, there is no basis to the petition. There is no New York State
statute comparable to 12 U.S.C.A. §2607(b) and Curtin's misconduct is not a crime in New
York. There is no basis in the record to disqualify Curtin under SCPA §707[1][d].
An individual is also ineligible to receive letters testamentary if he does not possess the qualifications required of a fiduciary by reason of dishonesty. (SCPA §707[1][d].) To prove dishonesty, a petitioner must show that a nominated executor has a pattern of financial wrongdoing that poses a genuine, serious risk to sound management of the estate. (In re Flood's Will, 236 NY 408 [1923]; In re Mecko's Will, 70 NYS2d 41, 45 [Surr Ct, Broome County 1947].) Curtin's misdemeanor conviction, tangentially related to financial matters, does not constitute "dishonesty" sufficient to disqualify him under SCPA §707(1)(d). (In re Estate of Cohen, 164 Misc. 98, 100 [Surr Ct, Kings County 1937] aff'd 254 A.D. 571 [1938].) Petitioner must show that the nominated executor has a tendency or "habit of mind" toward wrongful financial conduct. (In re Estate of Cohen, supra .)
Although Curtin's wrongdoing involved money, the transaction at issue was victimless. [*3]No client of Curtin suffered any loss as a result of his receipt of
payments. The District Court did not order Curtin to pay restitution or sentence him to jail time
or probation. While this Court does not condone Curtin's misconduct, I find that it is insufficient
to warrant disqualification under SCPA §707[1][e].
REVOKING LETTERS TESTAMENTARY GRANTED TO CURTIN
UNDER DECEDENT'S WILL
A court can remove a fiduciary or modify his letters if the fiduciary was or has
become ineligible or disqualified and the petitioner did not object prior to the issuance of letters
testamentary. (SCPA §711[1].) Fiduciaries are typically removed only in cases of serious
misconduct or where the safety of the fund is endangered (Turano & Radigan, supra
, §14.04[a][1][A].)
A petitioner's allegations that a fiduciary has a claim against the estate or a conflict
of interest with the estate is not sufficient to justify removal (Turano & Radigan, supra
, §14.04[a][1][A]; see also Matter of Weiss, 33 Misc 2d 773, 776 [Surr Ct, New
York County 1962].) An executor cannot be removed from office or enjoined in anticipation of a
possible wrongdoing. (Matter of Weiss, supra .)
Co-petitioners allege a conflict of interest in Curtin's dual role as attorney and
executor. Co-petitioners' specific fear is that, in light of Curtin's guilty plea and misdemeanor
conviction, Curtin will seek payment for legal fees (for himself and his attorney) and expenses
for services never performed for the estate, or in an amount far in excess of their worth.
Co-petitioners contend that this anticipatory conflict of interest, Curtin's misdemeanor violation,
and Curtin's domiciliary in Florida make Curtin unfit to continue to act as executor. Assuming all
of the allegations to be true, I find that petitioners have not alleged misconduct severe enough to
constitute serious misconduct; have failed to demonstrate a substantial conflict of interest or to
establish on a prima facie basis that Curtin is unfit to continue to act as executor. That does not
mean that Curtin's conduct as Executor may not be further scrutinized by the court. This Court
retains jurisdiction at all times to direct Curtin to account (SCPA § 2205) and to fix his
compensation. (SCPA § 2110.)
AWARDING PETITIONERS REASONABLE ATTORNEY'S
FEES AND COSTS
At any time during the administration of an estate and irrespective of the pendency of
a particular proceeding, the Surrogate is authorized to fix and determine the compensation of an
attorney for services rendered to a devisee, legatee, distributee or any person interested (SCPA
§2110[2].) The Surrogate has broad discretion in determining what constitutes reasonable
compensation for legal services (In re Estate of Jakobson, 304 AD2d 579 [2nd Dept.
2003] lv appl den 100 NY2d 515 [2003].) Petitioners have failed to show how the work of their
attorneys has benefitted decedent's estate. I have reviewed the record and have determined that
petitioners' attorneys are not entitled to an award of attorney's fees and costs.
[*4]
Accordingly, petitioners' respective petitions to
vacate and/or revoke letters testamentary must be dismissed in their entirety.
Counsel for the executor is directed to submit a decree consistent with the foregoing
within ten (10) days of service of a copy of this decision.
The Court considered the petitions, Holzman letter and Curtin affirmation with
memorandum of law.The foregoing constitutes the decision of the Court.
Dated:Poughkeepsie, New York
June 14, 2007
ENTER
HON. JAMES D. PAGONES, S.C.J.
TO:
061107 decision
Amy Holzman, Esq.
Guzov Ofsink, LLC
600 Madison Avenue, 14th Floor
New York, New York 10022
Robert L. Lackaye, Esq.
90 Market Street
Poughkeepsie, New York 12601
Thomas E. Dietz, Esq.
Dietz & Dietz, LLP
Two Cannon Street, Suite 207
Poughkeepsie, New York 12601
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