Disqualification of Spouse — Trusts and Estates Update

January 01, 2003

In a contested proceeding for letters of administration, the decedent’s daughter requested the issuance of letters to herself, and the decedent’s alleged spouse cross-petitioned for the issuance of letters to him, and a New York domiciliary who was not a distributee. The issue at trial was whether the respondent was disqualified as the decedent’s surviving spouse.

Although the petitioner conceded that the decedent and respondent had entered into a ceremonial marriage, she contended that the respondent was disqualified on the grounds that the alleged marriage was a sham green card marriage to gain green card status, or alternatively, that the marriage was void as bigamous both because the decedent was never validly divorced from her first husband, or because the respondent was never validly divorced from his second wife.

The Court found that even though the marriage was entered into for immigration purposes, these circumstances did not disqualify respondent as a surviving spouse pursuant to EPTL Sec. 5-1.2.

However, based upon the proof adduced, the Court found that the respondent and his second wife were never validly divorced, and that the respondent was disqualified on the grounds that his marriage to the decedent was void as bigamous. In view thereof, he was not a distributee of the decedent and was not eligible to receive letters of administration.

In re Estate of Julia Dominguez, New York Law Journal, November 25, 2002, p. 20 (Surrogate’s Court, Bronx County, Surr. Holzman)

Ejectment
Before the Court was a motion by petitioner in the underlying proceeding for an order dismissing the answer filed. The underlying proceeding was brought by the executrix for an order, inter alia, approving the sale of a parcel of realty and ejecting the respondent from the premises.

In her motion to dismiss, the movant/petitioner advised the court that she lost the prospective purchaser for the property, that the respondent never indicated that he wished to purchase the property, that he has been living there rent-free, and that he has been interfering with the realtors who need to show the property. The movant alleged that without a sale, the estate lacked sufficient assets to satisfy the debts of the estate.

In opposition to the motion, respondent asserted that he had a right to reside on the property until title closing, and that he was willing to pay “full value” for the property.

The Court held that a fiduciary has a superior right to that of a beneficiary to possess and manage the decedent’s realty for the purposes of sale, as well as to collect the rents thereof, and otherwise to preserve and make it productive for all those with beneficial interests therein. Additionally, estate beneficiaries do not have the right of first refusal with respect to estate realty, simply by virtue of their status as residuary beneficiaries.

Accordingly, the Court determined that while the respondent had the right to make a good faith offer for the purchase of the premises while the petitioner was in the process of finding a qualified buyer, he had no right to reside on the premises indefinitely and interfere with the fiduciary’s attempts at sale. The petitioner’s request for ejectment of the respondent was, therefore, granted.

In re Estate of Pastorelli, New York Law Journal, November 21, 2002, p. 25 (Surrogate’s Court, Suffolk County, Surr. Czygier)

Interest on Payment of Legacies
In a contested miscellaneous proceeding, the petitioner sought payment of her testamentary cash legacy and the cash legacies of her six children together with statutory interest, as well as removal of the executrix. Petitioner’s motion for summary judgment was granted in part and denied in part.

The record revealed that the decedent’s will was admitted to probate without objection by the petitioner in July, 2000. In January, 2001, petitioner commenced a proceeding to vacate the probate decree and admit a prior will to probate. That proceeding went to a hearing, and the Court’s decision was pending.

During the pendency of the vacature proceeding, petitioner made a demand on her behalf and on behalf of her children for payment of their legacies, indicating, however, that she would not insist on payment until the sooner of the vacatur proceeding or a distribution by the executrix of estate funds to herself and her brother as the residuary legatees under the will. In October, 2001, petitioner made a similar conditional demand.

In February, 2002, petitioner learned that in December, 2000, the executrix sold a parcel of estate realty for $190,000, and thereafter, purchased her brother’s one-half share in the decedent’s home for $90,000, allegedly using funds from the prior sale. Based thereon, petitioner instituted the miscellaneous proceeding for payment of her and her children’s legacies and for the executrix’s removal on the grounds of self-dealing.

As to the payment of the legacies and interest, the Court found that summary judgment was warranted. Contrary to the fiduciary’s position, the Court found that the pendency of the vacatur proceeding did not alter the statutory time limitations and requirements of EPTL 11-1.5. Further, the Court found that upon the expiration of the seven month period after letters testamentary were issued, the legacies in issue had matured, there were sufficient funds available to pay them, and due demand for payment had been made. Respondent’s excuse for the delay in payment, to wit, that she was following the advice of counsel, was held to be insufficient as a matter of law. Accordingly, the Court determined the fiduciary’s actions in withholding payment of the petitioner’s legacy to be unreasonable, and imposed interest at the penalty rate of 9 per cent per annum, payable by the fiduciary individually. As to the interest of the petitioner’s children, the Court found that since they were adults, not under a disability, and had not appeared in the proceeding, its determination had to be limited to petitioner only. Petitioner’s children were advised to institute a plenary proceeding for the same relief as petitioner if they chose, or by appropriate application join in the underlying proceeding. In re Estate of Grillo, New York Law Journal, November 13, 2002, p. 24 (Surrogate’s Court, Westchester County, Surr. Scarpino)

Jurisdiction-Non-Domiciliary Estate
Before the Court was a proceeding to probate the will of a Florida domiciliary. The Court entertained the petition on the basis of allegations that the assets of the decedent subject to probate consist solely of assets located in Suffolk County, that the distributees are the same under Florida and under New York law, and that the will has not been and will not be offered for probate elsewhere. The Court held that it had the discretion to entertain a petition for original probate of the will of a non-domiciliary, and that the relevant factors favored granting jurisdiction.

In re Estate of Dougherty, New York Law Journal, November 21, 2002, p. 25 (Surrogate’s Court, Suffolk County, Surr. Czygier)

Editor’s Note: Ilene S. Cooper is counsel to the firm of Farrell Fritz, P.C., Uniondale, New York, where she concentrates in trusts and estates. She is an Officer of the Suffolk Academy of Law, a member of the Suffolk County Bar Association’s Board of Directors, and an adjunct professor of law at Touro College, Jacob D. Fuchsberg Law Center, where she teaches Trusts and Estates and Trusts and Estates Administration.

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