Surrogate McGinty
ESTATE OF DAVID A. TAPPER, Deceased (10-112/H and J) — When David Tapper signed his will in 2006, he proudly described his children, his primary beneficiaries, as “decent, caring people.” He hoped that after his death they would be “supportive and loving to each other.” Sadly, the contentious 12-year history of this estate long ago proved Tapper wrong: Gwen Tapper and Seth Tapper are anything but supportive or loving to each other, nor have they proved themselves to be particularly caring when it comes to the interests of decedent’s grandchildren, the beneficiaries of his testamentary trust. Proceedings in this estate have included the removal of both co-executors (Mr. Tapper in 2012; Ms. Tapper in 2015); findings of “improvident management of property” on the part of Mr. Tapper; withdrawal of their attorneys (each of whom cited an absence of cooperation by their respective clients); a protracted dispute among the nominated testamentary co-trustees, resulting in the renunciation of two in favor of Mr. Tapper and his wife; appointment of a guardian ad litem (“GAL”) to determine Mr. Tapper’s fitness to serve as a trustee for his own children; and unanswered orders to account, culminating in a finding of civil contempt against Ms. Tapper. The decedent’s will specifically bequeathed his $395,000 Woodstock residence and 50 percent of his residuary estate to Ms. Tapper. The balance of the residuary estate was allocated as follows: 15 percent to Mr. Tapper; 10 percent to his wife, Rhoda Kanaaneh; and 12.5 percent in trust to each of their two young children, Laiali Tapper and Malaika Tapper (jointly, the “Trusts.”) Mr. Tapper refused to serve with either of the nominated co-trustees and it was only after a GAL assessed Mr. Tapper’s fitness to serve and found him to be qualified that Mr. Tapper and Ms. Kanaaneh were appointed as co-trustees for the Trusts. They have done nothing in that capacity since signing their oaths in 2013. In 2016, Ms. Tapper was removed as executrix and directed to file an accounting. Ms. Tapper was also ordered to turn over all estate documents and estate assets to the successor fiduciary, the Ulster County Commissioner of Finance. She did none of these things. The administrator cta appointed after Ms. Tapper’s removal was able to marshall a few bank records and an estate bank account with $195,108.77, the amount shown on Schedule A of his 2017 accounting. But the co-executors had reported over $720,000 in probate assets in an August 2011 inventory of assets and Ms. Tapper had never explained to her successor or to the Court how the estate assets came to be reduced from $720,000 to $195,108.77. Ultimately, it took this Court’s 2019 finding of civil contempt, issuance of an arrest warrant and the threat of a 30-day sentence of incarceration to secure Ms. Tapper’s consistent attendance and cooperation. An accounting of the finances of the estate under Ms. Tapper’s stewardship has now been filed, which serves to purge her contempt. Only with the filing of the amended accounting did the Court learn that ten years ago Ms. Tapper and Mr. Tapper transferred the bulk of the estate’s assets to themselves and Ms. Kanaaneh in amounts estimated to be their full distributions. The distributions to the co-executors and Ms. Kanaaneh in 2010 and 2011 totaled $461,854: Gwen Tapper: $305,854, consisting of $124,887.80 in cash and $180,966.20 in marketable securities Seth Tapper: $96,000 in cash Rhoda Kanaaneh: $60,000 in cash No distributions were made to Trusts for the co-trustees’ young daughters at that time — or ever, up to and including the present day. The Tappers’ distributions to themselves, coupled with their failure to fund the Trusts at that time, are the chief subjects of the objections and this decision/order.1 As an initial matter, it should be noted that Article 13 of the decedent’s will attempts to exonerate the executors and trustees from liability, by way of surcharge or otherwise, for anything other than “actual fraud.” This clause is void as against public policy under EPTL 11-1-7. It does not relieve the fiduciaries from their basic non-waivable duties of “reasonable care, diligence and prudence” (Matter of Prevratil, 121 AD3d 137, 148 [3d Dept 2014]).
