PROCEDURAL HISTORY Decedent died intestate May 30, 2020, survived by his two adult children, Sara Nabil Fakhra (“Petitioner”) and Aous Fakhra (“Respondent”). The children were appointed Co-Administrators of Decedent’s Estate on August 6, 2020. On September 30, 2020, Aous Fakhra filed a Renunciation of his interest in the Estate along with an Affidavit in Support of Renunciation, and a Notice of Renunciation of Intestate Share pursuant to EPTL §2-1.11. On April 1, 2022, Sara Nabil Fakhra filed a Petition for Interim Judicial Settlement seeking the removal of Aous Fakhra as Co-Administrator, alleging that he was refusing to execute the documents necessary to transfer the assets of the Estate to Sara Nabil Fakhra pursuant to his Renunciation. The Respondent filed Objections on May 12, 2022, seeking the denial of the Petitioner’s Petition as well as her removal as Co-Administrator. The Respondent alleges that he and his sister entered into a verbal agreement that she would pay him an agreed upon sum of money for his renunciation. However, once he signed the Renunciation, she reneged on her promise. He argues that because he never physically served her with the Renunciation that it never became effective. In response, the Petitioner unsurprisingly denies the existence of a verbal agreement and argues that the Renunciation became effective upon its filing. Presently before the Court are two competing Motions: A Motion for Summary Judgment brought by the Petitioner seeking to dismiss the Objections and grant the Petition for Interim Judicial Settlement, and a Motion for Summary Judgment brought by the Respondent seeking an Order denying the Petition for Interim Judicial Settlement, holding that the Renunciation is ineffective, and ordering that the Estate be distributed to the Co-Administrators equally. OPINION A motion for summary judgment may be granted only if the moving party establishes that there are no material issues of fact requiring a trial, and the non-moving party has failed “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact” requiring a trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” (Zuckerman v. City of New York, 49 NY2d 557, 598 [1980]; Friends of Animals, Inc. v. Assoc. Fur Mfrs., Inc. 46 NY2d 1065, 1067-68 [1979]). While there is a factual dispute regarding the existence of a verbal agreement, the facts surrounding the actual execution and filing of the Renunciation are not in dispute, and the Petitioner argues that the factual dispute is not material. Therefore, the threshold question before this Court is whether it was necessary for the Renunciation to be physically served by one Co- Administrator upon the other Co-Administrator, and an Affidavit of Service filed for the Renunciation to be effective and irrevocable. This appears to be a case of first impression since the inception of electronic filing in New York State. Estates, Powers and Trust Law §2-1.11 describes the specific procedure required for the filing of a renunciation of an interest in an estate. “Such renunciation shall be in writing, signed and acknowledged by the person renouncing, and shall be filed in the office of the clerk of the court having jurisdiction over the will…within nine months after the effective date of the disposition. Such renunciation shall be accompanied by an affidavit of the renouncing party that such party has not received and is not to receive any consideration in money or money’s worth for such renunciation from a person or persons whose interest is to be accelerated, unless payment of such consideration has been authorized by the court. Notice of such renunciation, which shall include a copy of the renunciation, shall be served personally or in such manner as the court may direction upon the fiduciary directed by the will…to make the disposition” (EPTL §2-1.11(c)(2)). “Such renunciation shall be effective as of the date of such filing, notwithstanding that notice thereof may thereafter by required by the court” (EPTL §2- 1.11(c)(2)). EPLT §2-1.11 states clearly that “a renunciation filed under this section is irrevocable” (EPTL §2-1.11(h)). The irrevocability of estate renunciations is vital, since such renunciations can constitute qualified disclaimers for state and federal estate tax purposes. A renunciation is irrevocable even if the fiduciary consents to its revocation, and even if it was only executed due to a misunderstanding between the parties. (See Matter of Munch, 125 Misc 2d 610 [Sur Ct, Nassau County 1984] ["The Legislature obviously intended that renunciations be unquestionably irrevocable."]) At first glance, it would appear that the procedure outlined in EPTL §2-1.11 requires personal service upon the fiduciary, however, the Uniform Rules for Surrogate’s Courts pertaining to electronic filing, mandatory in Monroe County since 2013, provide that absent a specific emergency exception, “filing and service of all documents in a proceeding that has been commenced electronically in accordance with this section shall be by electronic means” (Uniform Rules for Sur Ct [22 NYCRR] §207.4-aa(c)(1)). Additionally, other than to obtain initial jurisdiction, “e-service may be made upon any party who is an e-filer in the proceeding” (Uniform Rules for Sur Ct [22 NYCRR] §207.4-a(g)). The Rule goes on to explain the mechanism by which the e-filer receives the ‘served’ documents: “Upon e-filing of any such document NYSCEF shall transmit notification of filing of the document to all e-mail service addresses of record. Such notification shall provide the date and time of filing and the names of those appearing on the list of e-mail service addresses of record who are receiving notification. The party receiving the notification shall be responsible for accessing NYSCEF to obtain a copy of the document filed. Proof of transmission to the party or the failure thereof shall be recorded by NYSCEF and displayed in the e-filing case record” (Uniform Rules for Sur Ct [22 NYCRR] §207.4-a(g)). The estate administration proceeding was commenced electronically on behalf of the coadministrators on July 31, 2020. Therefore, two months later, when the Respondent electronically filed the Renunciation and associated documents, they were ‘served’ upon the Petitioner through the NYSCEF system as described in the Uniform Rules. The fact that the Petitioner received the Renunciation in this manner is undisputed. Her receipt of the Renunciation pursuant to the electronic filing system is considered service under the law, since the Uniform Rules for Surrogate’s Court are “applicable to proceedings in all Surrogate’s Courts in New York State,” and must be “construed consistently with the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trusts Law (EPTL) (Uniform Rules for Sur Ct [22 NYCRR] §207.1). Furthermore, even prior to the relatively recent changes in electronic service and filing, courts recognized the distinction between notice and service in the validity of renunciations. “It has long been held that service of process is distinguishable from proof of service. Proper service gives jurisdiction; improper proof of service neither voids service nor defeats jurisdiction” (Matter of Grochocki, 49 Misc 3d 721, 727 [Sur Ct, Broome County 2015], citing Coutain v. Coutain, 76 Misc 2d 982 [Sur Ct, Kings County 1974]). It is undisputed that the Petitioner received the Renunciation. “Unlike a gift, a renunciation is rendered irrevocable only by the ‘ministerial act’ of filing. According to the governing statue, a renunciation must be filed with the court and ‘shall be effective as of the date of such filing’…once filed, a renunciation is irrevocable” (Matter of Overgard, 5 Misc 3d 628, 630 [Sur Ct, NY County 2004]). The Respondent also makes an argument in equity, alleging that he and the Petitioner entered into a verbal agreement, and she broke that agreement after he had already relied upon it. In his Affidavit in Support of Renunciation, the Respondent affirmed that he had “not received and will not receive any consideration in money or money’s worth for such renunciation and disclaimer from any person or persons whose interest is created or accelerated by reason thereof.” At the time of his execution of this Affidavit, the Respondent was represented by counsel, and was competent. He now alleges that this statement was not true. His argument is that he lied in the filing of the Renunciation, and therefore the Court should enforce the terms of an alleged verbal contract that specifically contradicts his own prior sworn statement. This is beyond the equitable scope of this Court, and furthermore, a Renunciation is irrevocable even if the signor did not fully understand the terms (see, Matter of Munch, 125 Misc 2d 610 [Sur Ct, Nassau County 1984].) The Respondent has not produced any evidence in admissible form, other than his own testimony, that such a verbal agreement existed. He attempts to use the Petitioner’s subsequent negotiations with him regarding the Estate property as proof that the agreement existed previously, but we cannot know the Petitioner’s motivation to engage in those negotiations. Petitioner claims that she tried to reach an agreement with the Respondent simply to avoid expensive litigation, which is plausible. Respondent has not established that he is entitled to summary judgment on his Objections to the Petition for Interim Judicial Settlement, nor has he established that there are material issues of fact requiring a trial on the validity of the Renunciation. (See, Zuckerman v. City of New York, 49 NY2d 557, 598 [1980].) The Renunciation has been effective and irrevocable since the date of its filing, September 30, 2020, and the Respondent has a fiduciary duty to effectuate its terms. However, the Court declines to grant that aspect of the Petitioner’s filings that request the revocation of the Respondent’s Letters of Administration. “[W]hile courts have the power to remove a fiduciary, that power is exercised sparingly and only where the record demonstrates a danger to the estate or trust if removal is denied” (Matter of Epstein, 202 AD3d 669, 671 [2d Dept 2022], citing Matter of Petrocelli, 307 AD2d 358, 359 [2d Dept 2003]). The Respondent did fail to effectuate the filed Renunciation, but that was due to his belief (supported by advice from counsel) that it was ineffective. However, upon the entry of this Decision and Order, the Respondent will be under an obligation to act, and will be removed summarily if further unreasonable delay occurs. “[E]vidence of conflict and animosity between fiduciaries which impedes the orderly administration of the estate or trust is a valid ground upon which to remove a fiduciary” (Matter of Epstein, 202 AD3d 669, 672 [2dDept 2022]). Therefore, in accordance with the above decision, it is hereby ORDERED, ADJUDGED and DECREED that the Petitioner’s Motion for Summary Judgment is hereby granted in part, and a Decree of Interim Judicial Settlement will issue accordingly; and it is further ORDERED, ADJUDGED and DECREED that the Respondent’s Motion for Summary Judgment is hereby denied; and it is further ORDERED, ADJUDGED and DECREED that the Respondent is hereby directed to take all actions necessary to facilitate the transfer of any and all Estate property to the Petitioner or be subject to removal as Co-Administrator. Dated: July 7, 2023
