Matter of Garvey
Annotate this CaseDecided on May 6, 2013
Surrogate's Court, Dutchess County
PROBATE PROCEEDING, Will of John Albert Garvey, Deceased.
2012-188/A
PETER C. McGINNIS, ESQ.
Attorney for Petitioner
KATHLEEN B. GARVEY
515 Haight Avenue
Poughkeepsie, New York 12603
James D. Pagones, J.
The decedent died February 19, 2012 survived by five (5) adult children: John Anthony Garvey ("John"), Kathleen Bernadette Garvey ("Kathleen"), Christopher Michael Garvey ("Christopher"), Patrick Francis Garvey ("Patrick") and Kevin Augustine Garvey ("Kevin").
The decedent left a will, dated July 9, 2009. Paragraph SECOND contains a specific bequest of ten dollars ($10.00) to John. The residuary estate is set forth in Paragraph THIRD. It divides the remainder of the estate in equal one-quarter shares to Kathleen, Christopher, Patrick and Kevin. Kathleen is nominated to serve as the sole executrix.
On March 13, 2012, Kathleen filed an affidavit in relation to settlement of estate under SCPA Article 13, along with decedent's original will. Personal property of a savings/checking account valued at $16,000.00 and a 2006 Ford Freestyle motor vehicle valued at $10,000.00 were identified as the sole assets. The funeral bill ($8,879.00), cemetery bill ($1,682.00), and a car loan ($9,449.13) were listed as known liabilities.
Other assets of the decedent were discovered after the Article 13 affidavit was filed which raised the gross estate above the small estate threshold of $30,000.00. On November 15, 2012, Kathleen filed a petition to probate decedent's will. A citation was issued to the four (4) siblings. Christopher, Patrick and Kevin have appeared in a self-represented capacity. John has defaulted in appearing. Christopher, Patrick and Kevin have submitted individual notarized letters addressed to Kathleen's ability to serve as executrix and a host of other issues. They are prolix. They can be summarized as follows. Christopher is not opposed to Kathleen serving. Kevin is highly critical of his sister, but he never clearly states whether he consents to or opposes her appointment. Patrick is adamantly opposed to Kathleen serving as executrix. [*2]
Initially, the Court notes that none of the responding siblings raise any issue with respect to the genuineness of the will, the validity of its execution, the testamentary capacity of the decedent and his understanding of the propounded instrument. (See, In re Stegner's Will, 253 AD 282 [2d Dept. 1938].)
In order to serve as a fiduciary, a person must be eligible. Every person is eligible except those listed in SCPA §707. (Turano & Radigan, New York Estate Administration, §14.02[c], 2013 ed.) SCPA §707 provides objective and subjective criteria for the court to consider when assessing the eligibility of a proposed fiduciary. (Valente and Bockstein, Deference or Discretion: Assessing Fiduciary Eligibility, NYLJ, 07/10/08, pg 3 col 1.) "The objective standards for eligibility [are straightforward]...[E]ither you are an infant or not, an incompetent or not, a nondomiciliary or not, or a felon or not, all of which are easily verifiable and afford the court virtually no discretion." (Valente and Bockstein, supra.)
The subjective standards are found in SCPA §707(1)(e). Persons who are ineligible to serve are those who do not possess the qualifications "by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit for the execution of the office." (See also, Turano & Radigan supra; Valente and Bockstein, supra.)
It is settled that the selection of a fiduciary by a testator is presumptively entitled to great deference. (Matter of Leland, 219 NY 387 [1916]; Matter of Singer, 2 Misc 3d 665, 666 [Sur Ct, NY Cty 2003].) It must be implemented absent a ground for disqualification. (Matter of Simon, 44 AD2d 570 [2d Dept. 1974], appl den'd 34 NY2d 516 [1975].) The party alleging that the fiduciary is ineligible pursuant to SCPA §707(1)(e) has the burden of proving it. (Turano & Radigan, supra, at 490.) The objecting party must make a strong showing to deny letters. (Matter of Rad, 162 Misc 2d 229, 233 [Sur Ct NY Cty 1994].)
Mere friction or hostility between the nominated executrix and the beneficiaries is not a sufficient ground to warrant removal. (Matter of Venezia, 25 AD3d 717, 718 [2d Dept. 2006], lv appl den'd 15 NY3d 704 [2010].) The enmity must be such so as to interfere with the proper administration of the estate, and future cooperation is unlikely. (Matter of Thompson, 232 AD2d 219 [1st Dept. 1996].) Generally, an evidentiary hearing is conducted to determine whether such friction and hostility would interfere with the proper administration of the estate. (Matter of Venezia, supra, at 719.)
The record indicates quite clearly that sibling acerbity in various degrees of longstanding intensity and duration exists among the decedent's children. Patrick has exerted the greatest effort to convince the Court that Kathleen is otherwise unfit to serve as executrix. Rather than reciprocate venom for venom, Kathleen has systematically responded to Patrick's accusations with reasoned explanations and documents. The allegations offered by Patrick amount to unsubstantiated conclusions without the benefit of factual underpinnings. The same conclusion can be drawn from the criticisms of Kevin. It is also noteworthy that the decedent had five (5) children. Yet, he specifically designated Kathleen to serve as the sole executrix. A hearing is not required because no valid objections have been filed raising any issue of fact, including the issuance of letters. All objections are dismissed. Petitioner has demonstrated her ability to serve. The genuineness of the will and the validity of its execution has been shown to the satisfaction of the Court. It is admitted to probate pursuant to SCPA §1408 and EPTL §3-2.1. Petitioner's counsel is directed to settle a decree on notice consistent with the foregoing within ten (10) days [*3]of service of a copy of this decision.
On this application, the Court considered the petition for probate, citation, notice of petition for appointment of successor executor filed by Christopher Garvey with attachments, notarized letter of Patrick Garvey, dated January 10, 2013, notarized letter of Kevin Garvey, dated January 5, 2013, notarized letter of Christopher Garvey, dated January 7, 2013, indicating his consent to Kathleen Garvey serving as executrix, affidavit and supplemental response to objection to probate filed by Christopher Garvey, dated March 20, 2013, attorney's affirmation, dated March 19, 2013, notarized response of Kathleen Garvey, dated March 19, 2013, with five (5) exhibits and objection and verified affidavit of Patrick Garvey with approximately one hundred and fifty (150) attachments. The April 15, 2013 correspondence from Patrick F. Garvey with three attachments and document entitled "Affidavit of Respondents Opposition to Answer", received by the Court on April 17, 2013, were not considered as they were filed after the fully submitted
date of March 26, 2013.
The foregoing constitutes the decision of the Court.
Dated:Poughkeepsie, New York
May 6, 2013
ENTER
HON. JAMES D. PAGONES, S.C.J.
042513 decision
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