Currently pending in this contested probate proceeding is the request by the preliminary executor, a daughter of the decedent to extend her letters and opposition to that request by the objectants, the spouse and another daughter. On December 20, 2018 the court heard argument on the extension request but held its decision in abeyance pending the parties attempt to negotiate a global settlement. Thereafter, the court was informed of the failed settlement and the matter was accordingly submitted for a decision on the extension request.The decedent died on April 24, 2017 survived by the spouse and two daughters, as his presumptive distributees. The propounded instrument dated March 7, 2017, nominates the preliminary executor as fiduciary and provides several bequests to a friend of the decedent, who is the mother of the preliminary executor, and leaves the residuary to the preliminary executor. The issue regarding the decedent’s distributees remains outstanding as the spouse submitted a sworn affidavit alleging that the decedent may in fact have another distributee, a son in California. Additionally, the preliminary executor alleged in her initial petition, that the decedent and spouse obtained a Mexican divorce some time in the 1970s, however she appears to have been abandoned that position, at least for the moment.According to a stipulation executed on June 20, 2017 by all appearing parties, the daughter obtained preliminary letters, with various limitations; those letters were extended in September 2017 and again in December 2017 without opposition. However, in May 2018 upon a third request to extend the letters which were due to expire on June 18, 2018, the spouse submitted opposition to the extension request and asked that the Public Administrator be appointed pending the conclusion of the probate proceeding. Upon the consent of all parties, an order was signed extending the preliminary letters until December 17, 2018 and the parties entered into a briefing schedule on the extension request and the matter was set down for a hearing to be held on December 20, 2018.The court heard argument from the attorneys for the spouse and the preliminary executor, as well as from the objectant daughter, who is proceeding pro se. The hostility and animosity among the parties that began prior to decedent’s death and continued unabated thereafter was described in detail by both counsels and the objectant. To put it mildly and succinctly, the preliminary executor and the objectants have been engaged in disputes and litigation over any conceivable matter related to decedent’s person and his property, and there appears to be no end in sight to the litigation. The subject of those disputes ranged from decisions over decedent’s medical care when he was on his deathbed, how his remains would be handled, how he would be mourned and the inscription on his headstone. Additionally, prior to his death, the parties began litigation over control of decedent’s shares in a corporation which decedent owned with other individuals, which continues in Supreme Court, New York County; not surprisingly the parties have extended their dispute to include his estate. There does not appear to be much that the preliminary executor and the objectants can agree on except that they do not “like or trust each other,” and the disdain and animosity was manifest throughout the parties arguments.Although the attorney for the preliminary executor acknowledged the hostility during his argument, he attempted to downplay it, suggesting with a strain of credulity, that his client could fairly and properly continue to serve as preliminary executor in spite of this long standing, palpable animosity. What was clear to the court from the arguments, as well as the history of the litigation between these parties, both before this court and other venues, is that the parties cannot get along and this animus and hostility is hindering the administration of this estate.The court is mindful that in “[general] testators’ solemn selections as to who should be trusted with administering their estates should be nullified only when statutory grounds exist for disqualification are clearly established,” (Matter of Mullen, NYLJ Dec, 27, 2012 at p. 18, col. 4 [Sur Ct Bronx County, 2012], citing Matter of Duke, 87 NY2d 465, [1996]; Matter of Leland, 219 NY 318 [1916]; Matter of Gotlieb, 75 Ad3d 99 [2010], Iv denied 16 NY3d 706 [2011]; Matter of Foss, 282 App Div 509 [1953]), and that disharmony alone is not a ground for disqualification (Matter of Mullen citing Matter of Thompson, 232 AD2d 219 [1996]; Matter of Jurzykowski 36 AD2d 488 [1971] affd 30 NY2d 510 [1972]; Matter of Rad, 162 Misc 2d 229 [1994]. However, under the circumstances of this case to assist in moving this estate forward, the testator’s wishes must yield to a third party appointed fiduciary, pending the outcome of the probate proceeding. Given the history of the litigation between these parties to date and the visceral nature of the disdain these parties have for each other, there is no scenario of which this court can conceive that would allow this estate to move forward should the preliminary executor remain in place.Accordingly, this decision constitutes the order of the court denying the preliminary executor’s request to extend her letters and appointing the Bronx County Public Administrator as temporary administrator of this estate upon the filing of an oath and designation pending the resolution of the probate proceeding. The preliminary executor is directed to file an account of her administration to date within 60 days of the date of this decision.Settle order in accordance with this decision.
