In this contested probate proceeding, the issue before the court is that Roger Johnsen, Claire Sharrett and Barbara Kiedrowski (“Respondents”) oppose the issuance of preliminary letters to Grace Tjornhom (“Petitioner”) nominated executor of a purported Last Will and Testament of the decedent dated August 1, 2017. The respondents specifically oppose granting the petitioners authority to effectuate the terms of a duly entered into Contract of Sale for the premises known as 14 Smith Avenue, Staten Island, New York 10314 (“Premises”) between the decedent and Erik Tjornhom, Jr. and Kori E. Tjornhom dated January 18, 2018. This matter was argued before the Surrogate on October 30, 2018 and decision was reserved.PROCEDURAL HISTORYCounsel for petitioner filed for preliminary letters on notice to counsel for respondents on August 14, 2018. Subsequently an affirmation in opposition to application for preliminary letters (“Affirmation in Opposition”) was filed on August 21, 2018 by counsel for respondents. Counsel for petitioner filed an Affirmation in Reply to Opposition to Application for Preliminary Letters (“Affirmation in Reply”) on August 29, 2018.DISCUSSIONCounsel for respondents argue that preliminary letters should not be issued due to the fact that the matter is still in pre-1404 discovery and that the sale of the house is below fair market value. Counsel for respondents further argue in the Affirmation in Opposition, “In effect the issuance of preliminary letters runs the risk of authorizing the petitioner to exercise the very provision causing the respondents to file objections to the Will in the first instance” (See, Affirmation in Opposition).Counsel for petitioner argues that preliminary letters should be issued to the petitioner for the following reasons:1. to avoid foreclosure of a reverse mortgage on the premises in the amount of $278,037.72 as of August 2, 2018.2. to avoid any potential action for breach of contract to compel specific performance and/or for damages.Additionally, counsel for petitioner argues in his Affirmation in Reply in paragraph 7 “.,.. decedent entered into a legally binding contract of sale to sell the subject property to his grandson….” Upon review of the contract of sale, the contract was entered into during the lifetime of the decedent. Further in paragraph 28(b) of the contract of sale, it states “… this contract shall also apply to and bind the heirs, distributees, legal representatives, successors and permitted assigns of the respective parties…” Therefore, the contract of sale is a separate document, the legality of which was not challenged and not part of the purported Last Will and Testament.CONCLUSIONAccordingly, after review of all the papers filed and oral argument, the application for preliminary letters is granted to the petitioner without the requirement of a filing of a bond. The preliminary executrix is cautioned that the authority is governed by the rules of care and prudence and the court has not by these proceedings approved or made any independent judgment as to the authority granted to the petitioner as preliminary executrix, the responsibility for which must be carried by the preliminary executrix.After reviewing the petition and the supporting documents, the application is granted. Pursuant to the provisions of SCPA 1412, Preliminary Letters Testamentary shall issue to Grace Tjornhom, upon her duly qualifying according to law. These letters are subject to the limitations set forth in SCPA 1412(3)(a) and shall remain in effect for a period of six (6) months from the date of issuance.No distribution of assets is permitted pending the further Order of this court, or until the admission of the Will to probate, and the issuance of Letters Testamentary.After reviewing the documents in support of the application, the Court dispenses with the filing of a bond by the petitioner.Pursuant to SCPA 1412(3)(b) the preliminary executrix shall give notice to all parties who have appeared herein within ten (10) days of her appointment.This decision shall constitute the Order of this Court.Dated: December 24, 2018
