Before the court are competing applications for preliminary letters testamentary in the Estate of Joseph Gordon. Joseph Gordon (“decedent”) died on July 12, 2023, survived by his nephew, Paul Cohen (“Cohen”), as well as one great nephew, and two great nieces as his distributees. In his will dated November 29, 1989, decedent left part of his estate outright to his long-time partner, Doris Majeska (“Majeska”), and the residuary estate in trust for her. The will nominates Majeska as primary executor and trustee, and Paul as successor.1 As relevant here, the will also authorizes Majeska, who is presently 94 years of age, to designate a co-trustee to act with her, and she has expressed her intent to do so. On October 31, 2023, Cohen filed a petition to probate decedent’s will and an application for preliminary letters testamentary. Affirmations in support of Cohen’s petition allege that Majeska is not qualified to serve as fiduciary of the estate due to her advanced age and infirmed condition. Majeska filed a cross-petition for probate and cross-application for preliminary letters. Annexed to Majeska’s cross-petition is a memo from a social worker reporting about her visit with Majeska on December 1, 2023, and finding no evidence of cognitive deficits. In an effort to honor the testator’s presumptive wishes regarding the appointment of a fiduciary and reduce the possibility of frivolous contests, the court will ordinarily issue preliminary letters testamentary to the executor named in the propounded instrument (see Estate of Orwasher, NYLJ, Apr. 16, 2014, at 22, col 3 [Sur Ct, NY County]; Matter of Rattner, 107 AD3d 600 [1st Dept 2013]; SCPA 1412). To prevent a “contest within a contest” the court most frequently responds to serious, but disputed, allegations concerning the designated executor by providing a safety net, such as a bond or a limitation of authority, for the appointment (see Estate of Orwasher, supra; In re Vermilye, 101 AD2d 865 [2d Dept 1984]; Matter of Hernesh, NYLJ, Nov 16, 2012 at 23, col 2 [Sur Ct, Bronx County]). Here, decedent indicated his preference for Majeska to serve as fiduciary over his nephew, Cohen. Following a conference with counsel on August 7, 2024, the court is satisfied that Cohen’s allegations concerning Majeska’s fitness to serve do not support a conclusion that the estate would be at risk if she is appointed and are therefore insufficient to require a hearing at this early stage in the proceeding (see Matter of Vermilye, supra). Moreover, information supplied by Majeska, more recent in time and regarding her abilities in particular, refutes Cohen’s allegations that she is unfit to serve pursuant to SCPA 707. Although Cohen contests Majeska’s fitness as a fiduciary, any concerns he may have regarding the estate’s assets will be protected by the imposition of a bond on her appointment. Accordingly, preliminary letters testamentary shall issue to Doris Majeska upon her posting of a bond in the sum of $10,900,000. Order issued. Dated: August 15, 2024
