Surrogate MellaWILL OF JESSE M. GRIFFITH, Deceased (14-1202/A/B) — Decedent died on March 7, 2014 leaving an instrument dated June 2, 2003, as her last will and testament. Decedent is survived by her three sons: Donnell, Derrick and Richard. Donnell is the nominated executor, and Derrick is the nominated successor. Donnell offered the instrument for probate. Derrick and Richard filed objections. Their objections relate solely to Donnell’s fitness to serve as fiduciary of decedent’s estate and thus do not take issue with the validity of the propounded instrument or its execution (see EPTL 3-2.1), or decedent’s capacity. Derrick also filed a cross-petition seeking the issuance of letters testamentary to himself pursuant to his nomination as successor executor. Donnell has moved to dismiss that cross-petition, and the objections to his petition for probate.At the call of the April 12, 2019 calendar, the court granted Donnell’s motion to dismiss, noting that “[a] testator’s choice of executor is not lightly to be disregarded” (see Matter of Gottlieb, 75 AD3d 99, 106 [1st Dept 2015], lv denied 16 NY3d 706 [2011]), and that, absent substantiation of allegations as to wrongdoing or other unfitness on the part of the nominated executor, a court is bound to honor the testator’s choice of fiduciary (see Matter of Hoelzer, 15 Misc 3d 1138[A] [Sur Ct, Nassau County 2007]; see also Matter of Mann, NYLJ, Apr. 10, 1978, at 12, col 1 [Sur Ct, NY County]). Given Derrick and Richard’s failure after nearly five years to present any credible evidence of Donnell’s unfitness, the court ordered that the instrument dated June 2, 2003, be admitted to probate as decedent’s last will and testament, and that Letters Testamentary issue to Donnell Griffith.Accordingly, the objections to Donnell Griffith’s petition to probate a paper writing dated June 2, 2003, as the Last Will and Testament of Jesse M. Griffith, are dismissed. The cross-petition, to the extent that it seeks issuance of Letters Testamentary to the nominated successor executor, is denied.This decision, together with a copy of the transcript of the April 12, 2019 proceedings, constitutes the order of the court.Probate Decree to issue.Date: April 24, 2019
