Matter of Mestman

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[*1] Matter of Mestman 2014 NY Slip Op 51183(U) Decided on August 6, 2014 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2014
Sur Ct, Dutchess County

In the Matter of Probate Proceeding, Will of Philip Mestman, Deceased.



Attorney for the Petitioners


42 Catharine Street

Poughkeepsie, New York 12601


Objectant, Pro Se

23 Iris Court

Tinton Falls, New Jersey 07724


Assistant Attorney General

Charities Bureau

Attorney General of the State of New York

120 Broadway

New York, New York 10271



Attorneys for SMILE TRAIN, INC.

1211 Avenue of the Americas

New York, New York 10036
James D. Pagones, J.

Anna Marie Magliocca ("Anna") and Elcelia M. Boulle ("Elcelia"), the nominated executrices in the last will of Philip Mestman ("the decedent"), dated September 16, 2013, have applied for preliminary letters pursuant to SCPA §1412. In addition, by way of a separate petition, petitioners' request a decree [*2]authorizing them to sell the decedent's real property located at 13 Carnelli Court, Poughkeepsie, New York.

A proceeding to probate the decedent's will has been pending since November 18, 2013. The decedent leaves his entire estate to a charity, Smile Train, Inc., the alternate beneficiary under the will. The decedent's spouse, Rima Mestman, predeceased him. She was the primary beneficiary. A daughter, Shari Joy Mestman, also predeceased the decedent leaving no issue. The decedent's sole surviving distributee is a second daughter, Cathy Mestman ("Ms. Mestman"). Ms. Mestman is self-represented. Ms. Mestman was previously afforded reasonable accommodations under the Americans with Disabilities Act by order, dated April 18, 2014. Additionally, the Court assigned two (2) guardians ad litem ("GAL") for assistance in the underlying probate proceeding. They have filed their reports, with each indicating there is no legal reason for the court to deny probate of the proffered instrument.

Ms. Mestman has filed objections to the probate of the will and the relief requested by petitioners in the two proceedings now before the Court. Ms. Mestman is specifically disinherited under paragraph Ninth of the will. The Court has on file copies of three (3) earlier wills of the decedent, respectively dated March 19, 2008, June 1, 2007 and December 30, 1997. A common thread is perspicuous from each of these documents in that Ms. Mestman is disinherited.

Ms. Mestman has an interest in the estate of her father. As such, she has the right to object to the issuance of preliminary letters. (Turano & Radigan, New York Estate Administration, §3.10[a][2014 ed. LexisNexis Matthew Bender].)

Ms. Mestman's objections to the petitions can be summarized as follows: 1) the Court should not grant preliminary letters, as petitioners and counsel for the estate are duplicitous; 2) one of the petitioners is a rank dipsomaniac; 3) petitioners and counsel for the estate have engaged in ingannation since the decedent's death on October 20, 2013; 4) they are intransigent responding to her repeated requests for information concerning the estate; 5) petitioners and counsel for the estate are nothing but filchers; 6) the Court's personnel are inept and unresponsive; and finally, 7) the Court should decide her objections to probate first before allowing the sale of the decedent's residence and its contents, some of which Ms. Mestman claims are her personal belongings.

Petitioners offer the following reasons for their applications: 1) the contested probate has caused significant delays; 2) the cost of maintaining the decedent's residence is escalating to the detriment of other estate assets; 3) petitioners have paid out of pocket various expenses such as court fees, the utility bill and house maintenance expenses related to the residence and the funeral bills for both the [*3]decedent ($5,600.00) and his predeceased spouse ($5,680.52); 4) this is the prime selling season; (5) the 2014 town and county taxes ($4,000.00) remain unpaid; 6) selling the residence will eliminate the ongoing costs of maintaining a vacant furnished home such as electricity, insurance, property and school taxes, security monitoring costs, water service, landscaping, snow plowing, fuel oil and the attendant risks of retaining vacant property; and 7) the cost of insuring a vacant furnished home may be prohibitive.

It is settled that "[a] testator's choice of executor is not lightly to be disregarded" unless solid issues of wrongdoing are raised. (Matter of Rattner, 107 AD3d 600 [1st Dept. 2013], aff'd 117 AD3d 603 [1st Dept. 2014], quoting Matter of Gottlieb, 75 AD3d 99, 106 [1st Dept. 2010], lv den 16 NY3d 706 [2011].) A delay in probate because of a protracted will contest customarily serves as a basis to apply for preliminary letters (Turano & Radigan, at §3.10).

The propounded instrument does not limit the authority of the proposed executrices. Rather, it grants them the powers conferred by EPTL §11-1.1, along with some additional powers (Paragraph Sixth). It also exonerates them from posting a bond. The Court's file indicates that the decedent executed three (3) prior wills, respectively dated March 19, 2008, June 1, 2007 and December 30, 1997. The same testamentary theme is evident in each of those documents, as the decedent specifically disinherits Ms. Mestman.

The first five (5) objections advanced by Ms. Mestman are dismissed as meritless. The allegations of disqualifying conduct exhibited by petitioners amount to nothing more than unsubstantiated epithets, utterly lacking in probative value (see, Matter of Lurie, 58 AD3d 575 [1st Dept. 2009], on subsequent appeal 91 AD3d 509, lv to app dismissed 20 NY3d 1031 [2013].) Where, as here, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters. (Matter of Barboni, 39 Misc 3d 1225[A][2013].)

The sixth objection, which is directed at this Court's personnel, has no bearing on the determination of the legal issues discussed in this decision. It is completely unfounded. It does, however, invite comment. Ever since Ms. Mestman's appearance following the commencement of this proceeding in mid-November, 2013, the personnel of this Court have endured her incessant fusillade of criticism, verbal and written, with grace and professionalism. The vitriolic verbal abuse recently reached such a crescendo that there is now an order in place directing that Ms. Mestman is no longer permitted to converse with this Court's personnel via telephone but may do so by other means such as e-mail, facsimile transmission or by letter, by way of example.

The seventh and last argument is not convincing for the following reasons.

Assuming for the moment that Ms. Mestman prevails on setting aside the propounded instrument, there are still three (3) earlier wills signed by the decedent which dot the testamentary landscape. Those instruments, like the one before the court, disinherit Ms. Mestman. The odds of Ms. Mestman succeeding, as a self-represented party, in nullifying four (4) wills so that she can ultimately inherit her father's estate, pursuant to EPTL §4-1.1(a)(3), is formidable. The corresponding delay in the administration of the decedent's estate will result in the inefficient use of its assets and resources.

The decedent's residence and its contents are the most significant assets identified in the petition for preliminary letters and Schedule A attached to the companion petition for permission to sell. One of the actions for which a fiduciary may be found liable is waste. (SCPA §711[2]; Matter of Morningstar, 21 AD3d 1285, 1287 [4th Dept. 2005].) The application is logical and prudent at this juncture for the reasons expressed by petitioners. To allow the real property to remain dormant while petitioners address the prolix submissions of Ms. Mestman could, in all likelihood, result in the wasteful dissipation of such asset to the detriment of the intended charitable beneficiary.

Both petitions are granted with the following limitations. (Turano & Radigan, at §3.10[b].) Ms. Mestman makes a valid point that petitioners should account for all items of personal property contained in the residence so that she can, upon proper proof from her, file a claim for the same. In addition, petitioners are directed to file for approval by separate order of the court the proposed contract of sale. They are further directed to retain the net proceeds of sale pending further order of the court. The petitioners are authorized to serve without posting a bond. The petitioners are further directed to qualify as provided in SCPA §708. (SCPA §1412[5].)

Petitioners are directed to give notice to all parties who have appeared of their appointment within ten (10) days from the date of the decree to be entered based upon this decision. (SCPA


Petitioners' counsel is directed to prepare a decree based upon the foregoing with notice of settlement within ten (10) days from the date of this decision.

On these applications, the Court considered the petition for preliminary letters, petition to sell real property with three (3) exhibits and Ms. Mestman's e-mail submission, dated July 17,


The foregoing constitutes the decision of the Court.

Dated:August 6, 2014

Poughkeepsie, New York



HON. James D. Pagones, S.C.J. 080414 decision

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