Alexandra Moran Wallace (the “petitioner”) is the nominated executrix under the written instrument, dated May 10, 2015, being offered in this contested probate proceeding as the decedent’s Last Will and Testament (the “will”). Her application for preliminary letters testamentary is opposed by Karen Margulies (the “objectant”), the decedent’s sister and sole distributee. Pursuant to SCPA 709, the objectant moves, by order to show cause, to dismiss the petitioner’s application for preliminary letters and her probate petition. As stated below, the objectant’s motion is denied. The decedent died at the age of 74 on March 4, 2021. On September 14, 2021, the objectant’s daughter, as a designee, filed a petition (File No. 2021-1566) to become administrator of the decedent’s estate. Jurisdiction, however, is not complete in that proceeding. On November 19, 2021, the petitioner filed her petition to probate the will, along with an application for preliminary letters testamentary. The will appears to have been drafted by an attorney, who supervised it’s execution, and contains an attestation clause. Affidavits pursuant to SCPA 1406 have been filed for each of the will’s two witnesses. The will describes the petitioner as the decedent’s “true friend, faithful companion and trusted confidant.” Notably, the instrument states that the petitioner was residing in the decedent’s cooperative apartment located at 2750 Johnson Avenue, Apt. 4E, Bronx New York (the “apartment”). According to the probate petition, the estate’s principal assets are the apartment, a checking account and an annuity. Under the will, the decedent’s entire estate is essentially left to the petitioner, except for three modest monetary bequests to the objectant, the objectant’s daughter, and a Bronx church. Jurisdiction is complete in this probate probate proceeding, as the objectant, the decedent’s sole distributee, was served properly with citation. On the citation’s return date, January 20, 2022, the objectant appeared on the court’s virtual platform through counsel, who requested SCPA 1404 examinations. Prior to the return date, on January 3, 2022, an order was issued granting preliminary letters to the petitioner, contingent upon her filing a $323,000 surety bond with the court. On January 24, 2022, the petitioner filed the required bond. Before preliminary letters issued, however, the objectant filed the instant motion pursuant to SCPA 709, by order to show cause, along with verified objections to the issuance of preliminary letters. The order to show cause included a request to immediately stay the petitioner’s application for preliminary letters pending a decision on the motion. This interim relief was granted by the court. Under SCPA 709, an interested party may object to the issuance of preliminary letters on any of the grounds set forth in SCPA 707. Here, the objectant relies on SCPA 707 (1)(d) to contest the petitioner’s fitness to receive preliminary letters, alleging that the petitioner has “acted dishonestly, improvidently and is otherwise unfit for the execution of the office.” In support of her claim, the objectant provides her own affidavits as well as affidavits from her daughter and Robert Torres, a subtenant who allegedly resided with the decedent in the apartment and still lives there now. In addition, the objectant submits, inter alia, a copy of a note, supposedly written by the petitioner, that had been left in the apartment’s mailbox directing the mail carrier not to give the petitioner’s or the decedent’s mail to Mr. Torres. The objectant also offers a series of hostile, if not indecipherable, text messages, purportedly between the petitioner and Mr. Torres, which appear to indicate that Mr. Torres had been collecting the decedent’s mail (without authorization) and that the petitioner kept at least some of her personal belongings in the apartment. The objectant asserts that the petitioner may have taken possession of a rent check and the decedent’s personal property, including an automobile, without authority. The objectant further alleges that on multiple occasions the petitioner has misrepresented her relationship to the decedent and that she is falsely claiming she resides in the apartment. According to the objectant, the petitioner also failed to take the necessary steps to provide a proper burial for the decedent. Finally, the objectant contends that the petitioner has recently sublet a portion of the apartment to a second subtenant. In her opposing affidavit, the petitioner admits that she removed the decedent’s “outdated” clothing from the apartment so that they could be delivered to a homeless shelter. She also alleges that she removed the decedent’s books from the dwelling and attempted to donate them to a local library, which did not accept the donation. The petitioner denies all of the objectant’s other charges against her. She provides documents, including a New York State Identification Card and bank statements, showing the apartment as her home address and points out that the will identifies the apartment as her residence. According to the petitioner, the subtenant, Robert Torres, physically attacked her and ousted her from the apartment. She submits a police incident report to corroborate this claim. It is well settled that a testator’s selection of a fiduciary is presumptively entitled to great deference (see Matter of Leland, 219 NY 387 [1916]; Matter of Singer, 2 Misc 3d 665 [Sur Ct, NY County 2003]). It must be implemented absent a statutory ground for disqualification (see Matter of Simon, 44 AD2d 570 [2d Dept. 1974], appl den’d 34 NY2d 516 [1975]; Matter of Duke, 87 NY2d 465 [1996]). This is the case even if the instrument nominating the fiduciary has yet to be probated (see Matter of Rattner, 107 AD3d 600 [1st Dept 2013]) SCPA 1412 allows a nominated executor to obtain preliminary letters testamentary to immediately administer and protect estate assets when the probate of a will may be delayed (see Matter of Mandelbaum, 7 Misc3d 531 [Sur Ct, Nassau County 2005). The purpose of SCPA 1412 is to honor the testator's wishes with regard to the appointment of a fiduciary for his estate, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests ((Estate of Hubbard, NYLJ, Aug. 25, 1997, at page 30, col 2 [Sur Ct, Bronx County 1997]). The party alleging that the fiduciary is ineligible pursuant to SCPA §707(1)(d) bears the burden of proof in this regard (see Matter of Marriott, NYLJ, October 10, 2017 at page 32 [Sur Ct, Albany County]) Preliminary letters should be denied to a nominated fiduciary sparingly, and only where there is a clear showing of serious misconduct or wrongdoing that endangers the safety of the estate (see Matter of Israel, 64 Misc.2d 1035 [Sur Ct, Nassau County 1970]). Mere speculative or conclusory allegations that a nominated fiduciary is unfit are an insufficient basis to deny preliminary letters (see Matter of Farber, 98 AD2d 720 [2d Dept 1983]). In sum, the objectant must shoulder a substantial burden of evidence to establish her claim that petitioner is unfit to serve under SCPA 707(1)(d) because she has “acted dishonestly, improvidently and is otherwise unfit for the execution of the office” (see Matter of Rad, 162 Misc 2d 229 [Sur Ct, New York County 1994]). As to whether the petitioner acted “dishonestly,” it was up to the objectant to make a strong showing that the petitioner has committed improper acts related to money matters which create a reasonable apprehension that funds would not be safe in her hands (see Matter of Flood, 236 NY 408 [1923]; Matter of Latham, 145 AD 849 [1st Dept. 1911]; Matter of Krom, 86 AD2d 689 [3d Dept 1982]). To disqualify the petitioner for “improvidence”, the objectant was required to prove that the petitioner possesses ingrained “habits of mind and conduct” which would pose a significant risk of her dissipating the beneficiaries’ interests in the estate (see Matter of Stege, 164 Misc. 95 [Sur Ct, Sullivan County 1937]; Emerson v. Bowers, 14 NY 449 [1856]; In re Estate of De Belardino, 77 Misc 2d 253 [Sur Ct, Monroe County 1974]; aff’d 47 AD2d 589 [4th Dept. 1975]; Matter of Srybnik, NYLJ Jan. 23, 2017, at page 29 [Sur Ct, NY County 2017]; Matter of Marriott, supra). The objectant has not met her burden of proving, with competent evidence, that the petitioner is unfit to receive preliminary letters testamentary by virtue of being dishonest, improvident or otherwise. The allegations that the petitioner misappropriated a rent check and the decedent’s automobile are only speculation (according to the objectant’s papers, the petitioner “may have” taken the check, and it is “believe[d] the petitioner took possession of the vehicle). As to the objectant’s other contentions, they either have not been established by sufficient proof or they do not rise to the level of delaying the issuance of preliminary letters pending a time consuming and costly hearing (see Matter of Vermilye, 101 AD2d 865 [2d Dept. 1984]). Moreover, if the objectant should succeed in challenging the proffered will, she will have the protection afforded by the full bond being required by the court. As such, the risk to her interests is minimal. In the absence of a strong showing that there is likelihood of harm to the estate’s assets, the court will not allow objectant’s opposition to the issuance of preliminary letters testamentary to generate a contest within a contest (see Matter of Fordham, NYLJ, Dec. 16, 1998 at Pg. 23, col. 3 [Sur Ct, Bronx County]). On this state of the record, the objectant’s motion to dismiss the petitioner’s application for preliminary letters is denied. As for that branch of the objectant’s motion seeking to dismiss the probate petition, the objectant does not provide any basis whatsoever for granting such relief. To date, discovery has not begun and the objectant has not filed objections to the will. Therefore, on the record presented, the objectant’s motion to dismiss the probate petition is denied. For the reasons stated herein, this decision constitutes the order of the court denying the objectant’s motion and directing the immediate issuance of preliminary letters testamentary to the petitioner. The parties’ counsel shall appear for a calendar call on April 7, 2022 to schedule SCPA 1404 discovery. Proceed accordingly.
