Matter of Knee

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Matter of Knee 2015 NY Slip Op 32864(U) July 1, 2015 Surrogate's Court, Richmond County Docket Number: 2014-106 Judge: Robert J. Gigante Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SURROGATE'S COURT OF THE sTAfrE OF NEW YORK COUNTY OF RICHMOND 1· -------------------------------------------~----------------------------.>< In the Matter of the Estate of MARIE STARACE KNEE File Nos. 2014-106 2014-106/A j Deceased. ----------------~---------------------------------- -----------------------.>< In this pending probate procee1ing, the decedent died on October 6, 2013, a resident of Richmond County. At her d~ath, decedent was survived by her spouse, and five children from a prior marriage. Although no one contests probate of decedent's Last Will and Testament dated Octobej 14, 2004, the battle herein relates solely to who shall administer decedent's estate. The Will nominates decedent's j urviving spouse, Alan Knee, as the executor and her son, Robert Starace, as succes~or. In his petition, Alan Knee seeks to be appointed executor. In the cross petition, the decedent's son, Robert Starace, seeks to disqualify Alan Knee and have 1imsett appointed executor in his place. The respondent children claim that the nominated fiduciary is unfit due to his dishonest and improvident ~andling of decedent's as~ets since Marie Starace Knee's death, including taking a large sum of money from hJr safe deposit box and failing to pay required expenses on real estate. t Under §707{ 1){e) of the SCPA, person may be ruied ineligible to receive letters if he "does not possess the qualifications required of a fiduciary by reason of substance abuse, dish~nesty, improvidence: ~anf of understanding, or ... is othe~ise unfiHor the execution of the office." The prov1s1on ~or denial of letters to one who 1s otherwise unfit [* 2] for execution of the office" was added with the intention "to clarify the standard to be I employed by the Surrogate... and to 1expand the possible bases on which denial of letters might be grounded." Matter of Rad, 162 Misc2d 229, 231 ; 616 NYS 2d 684 (New I York Cty Surr Ct 1994). The burden of proving ineligibility rests with the objectants. I Matter of Krom, 86 AD 2d 689, 690: 446 NYS 2d 522 (NY App Div 1982); In re Mecko's Will, 70 NYS 2d 41,47 (Broome Cty Surr Ct 1947). Relative to the issue of eligibility, the Court is mindful that the weight of authority is to the effect that the showing against a nominated executor must be relatively strong I in order to disqualify him on the ground of dishonesty. Indeed, the choice of the I decedent should not be set aside lightly (Matter of Murphy, 136 Misc2d 618; In re Mecko's Will, 70 NYS2d 41 ). I The Court is likewise mindful pt the standard set for dishonest conduct which would render one incompetent to execute the duties of a fiduciary. This standard is set I forth in Matter of Latham's Will, (145 App Div 849) and its progeny. In Latham, the I Court stated "the dishonesty conterpplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be I entertained that the funds of the estafe would not be safe in the hands of the executor." A mere isolated act of wrongdoing is not enough to disqualify a fiduciary for dishonesty. Matter of Cohen, 164 Misc 98, 100; ~98 NYS 368 (Kings Cty Surr Ct 1937). I Marietta Stapleton, the decedEfnt's daughter, testified at an eligibility hearing held on March 9, 2015, that Alan Knee took between "four hundred to five hundred thousand dollars" in cash from a saf~I deposit box held in her and her mother's name. However, in an affidavit duly sworn ~o on February 12, 2014, Ms. Stapleton stated" ... saw trays 'of jewelry, multiple envelopes of cash including three envelopes labeled -2- [* 3] "$20,000" and one labeled "$15,000 .. ! " The affidavit does not contain any information I regarding the total amount of cash claimed to have been in the box. Mr. Knee denies I there was any money in the safe depCllsit box. These mere allegations of wrongdoing fall far short of the level of proof required to demonstrate that Alan Knee is ineligible to serve, due to dishonesty. However, dishonesty and imprpvidence are two separate and distinct grounds for disqualification. Improvidence requires a lesser burden of proof than dishonesty I because "the quality of being improvident does not necessarily involve moral turpitude," I Mecko, 70 N,YS 2d at 47. lmprovidenpe has been defined only as actions that "would be likely to render the estate unsafeJ and liable to be lost or diminished," Matter of Ferguson, 41 Misc 465; 84 NYS 11 o2 (Kings Cty Surr Ct 1903); Matter of Badore, 73 I Misc 2d 471, 477; 341NYS2d 970 (franklin Cty Surr Ct 1973). In addition, a finding of improvidence may also be based op the applicant's misappropriation or mishandling \ of decedent's property, Matter of DeBelardino, 77 Misc 2d 253, 255; 352 NYS 2d 858 (Monroe Cty Surr Ct 1974). Respondents contend, and Al~n Knee acknowledges, that he has not paid any of the carrying charges, including mortgage payments and real estate taxes, on 457 \ I Brighton Street, Staten Island, New York 10307, the former marital home in which he ! still resides, since his wife's death.1 Further he acknowledged, this has led to a foreclosure action being commenced! against the property, an estate asset. Mr. Knee's testimony at,his eligibility hearing be6ame more difficult since, although knowing his ! testimony was to continue, he left his eye glasses at home and was unable to identify I exhibits in evidence or respond to questions posed by respondents' counsel. When asked by the Court, "(M)ay I ask wllere your glasses are, sir?" and "(Y)ou knew you [* 4] were coming here?" Mr. Knee responqed , "It didn't seem like an important thing to me." At times, Mr. Knee also appeared donfused, and gave vague and non·responsive • I answers to questions. Indeed, the Court found his testimony to be incredible. I The Court after carefully noting and assessing the demeanor, candor and credibility of Alan Knee, including his want of understanding regarding the duties and I responsibilities of a fiduciary, finds him ineligible to perform the duties of executor of his I late wife's estate due to improviden~e and want of understanding and, therefore, respondents' application to disqualify him as executor of this estate is granted, and his petition seeking letters testamentary i~ hereby denied. Accordingly the matter is restored to the Court calendar on August 12, 2015 at I 10:30 a.m., for a conference with the Court's Law Department. I The Clerk of the Court is directed1to mail a copy of this Order to all attorneys who have appeared in this matter. I This Decision shall constitute tt~e Order of this Court. I Dated: July 1, 2015. i.·· .4. I 1

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