Matter of Walsh

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[*1] Matter of Walsh 2007 NY Slip Op 51353(U) [16 Misc 3d 1109(A)] Decided on July 10, 2007 Sur Ct, Richmond County Fusco, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2007
Sur Ct, Richmond County

In the Matter of the Estate of Michael Walsh, a/k/a Michael E. Walsh, Deceased.


Attorney for Petitioner: Thomas Sipp, Esq., (718) 273-6000

Attorney for Respondent/Objectant: Daniel Kuhn, Esq., (718) 720-3900

John A. Fusco, J.

In this pending probate proceeding, the decedent died on May 9, 2006, a resident of Richmond County. On June 6, 2006, Stephen Walsh, decedent's son, filed a petition for Letters of Administration seeking authority as administrator to institute a turnover proceeding pursuant to SCPA 2103 to discover assets belonging to the Estate of Michael Walsh, allegedly converted by respondent, Ellen Walsh, his sister. A turnover proceeding was first brought against the respondent in an Article 81 proceeding in Supreme Court, but was terminated by the death of the decedent.

On August 8, 2006, Ellen Walsh filed objections to the administration proceeding, claiming she had in her possession an original 1997 Will of the decedent and a copy of a Will dated August 10, 2000, the original of which was being withheld by her brother. This resulted in the filing by Stephen Walsh on August 24, 2006 of a petition seeking probate of the original 2000 Will, and the issuance to him of letters of Administration c.t.a. to bring the turnover proceeding. On October 6, 2006, Ellen Walsh filed objections not to probate, but only to the issuance of letters to the petitioner, Stephen Walsh. She consents to probate, waives her right to serve as executrix, although nominated as such in the Will, and requests that letters issue to the Public Administrator of Richmond County. She contends that the petitioner, Stephen Walsh, should be disqualified from serving as fiduciary pursuant to SCPA 707(1)(e) on the ground that petitioner lacks the qualifications required of a fiduciary by reason of dishonesty.

Specifically, respondent contends that the petitioner initially failed to offer the Will for probate, although said Will was in his possession, because it was to his financial advantage to bring an administration proceeding. After denying a motion for summary judgment, the Court scheduled a hearing on petitioner's eligibility to receive letters.

A hearing before the Surrogate was held on May 15, 2007. Both sides were given time to submit post-trial memoranda, which have been considered by the Court, and decision was reserved on June 13, 2007.

SCPA 707(1)(e) provides that letters may not issue to "one who is incompetent to execute the duties of his office by reason of ... dishonesty." Relative to the issue of eligibility, the Court is mindful of the standard set for dishonest conduct which would render one incompetent to execute the duties of a fiduciary. This standard is set forth in Matter of Latham's Will (145 App Div 849) and its progeny. In Latham, the Court stated "the dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a [*2]reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor."

Dishonesty alleged as a ground of ineligibility must be proved, and will not be inferred (Matter of Riede, 138 App Div 83). The burden of proof is on the party making the allegation. Indeed, one objecting to the appointment of a fiduciary on the ground of dishonesty must prove that dishonest conduct in financial matters is so characteristic of the petitioner that entrusting the administration of the estate to him would involve a genuine and serious risk that the funds of the estate would not be safe in his hands (Matter of Flood, 236 NY 408).

Although the respondent believes the funds of this estate would not be safe in the hands of Stephen Walsh, her proof falls far short of establishing this. Indeed, there was no evidence offered at trial to raise even a suspicion that the funds of the estate would be at risk. The mere allegation, unproven at trial, that petitioner failed to offer for probate a will which he knew to be in his possession does not disqualify the petitioner on the grounds of dishonesty, as contemplated by the statute. In applying the Latham standard, the Court finds that Stephen Walsh is not ineligible to receive letters pursuant to SCPA 707(1)(e).

Furthermore, the Court is satisfied upon all the proof that the propounded instrument is genuine, was validly executed, and that at the time of execution, decedent was competent in all respects to make a Will and free from restraint (EPTL 3-2.1; SCPA 1408).

The propounded instrument dated August 10, 2000, shall be admitted to probate and Letters of Administration c.t.a. shall issue to the petitioner herein upon his duly qualifying according to law.

Settle decree.

Dated: July 10, 2007

John A. Fusco, Surrogate

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