Standing to Protest Fiduciary Selection: Form or Essence?
Suppose your old, widowed Aunt Jean dies leaving you a bequest of $1 million in her will and the balance of her estate to her three children. She named as her executor her reprobate of a son Clifford, who has exhibited extreme hostility toward you throughout your lifetime. You are concerned that because of the history of hostility, it may be a long time before you will see your bequest, if you see it at all. Do you have standing to object to Clifford's appointment as executor?
Surrogate's Court Procedure Act (SCPA) §709 provides, in relevant part:
Any person interested, including a nominated fiduciary, before letters are granted to another fiduciary . . . may file objections showing his or her interest in the estate and stating one or more of the legal objections set forth in 707 to granting the letters to or the appointment of one or more of the persons about to receive them or to be appointed.
A "person interested" is defined in SCPA §103(39) as "any person entitled or allegedly entitled to share as beneficiary in the estate . . . ." It would appear, from a literal reading of the statute, that you, as beneficiary of Aunt Jean's estate, may object to Clifford's appointment, provided you have sufficient grounds under §707. However, you must be careful to state your objection as deriving from §709 as opposed to §1410, which addresses objections to probate of a will or part of a will, because courts' analyses of "person interested" for purposes of SCPA §709 and SCPA §1410 differ.
'Matter of Turner'
In Matter of Turner, 86 Misc2d 132 (Surr. Ct. Albany Co. 1976), the court addressed whether a preliminary executor of an earlier will had standing to object to the probate of a later will pursuant to SCPA §1410, which provides that "any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof . . . "
In reviewing the history of SCPA §1410, the court noted that this section is derived from §147 of the Surrogate's Court Act which provided that any person interested in the estate as devisee, legatee or otherwise, in a will or codicil for probate may file objections to any will or codicil so offered for probate. The court also noted that the purpose of §147 was to confer upon every person having a right to a distributive share of decedent's estate, either as distributee or as devisee, legatee, executor, testamentary trustee or guardian under an alleged prior will, a right to contest the probate of the instrument propounded as decedent's last will. Turner, supra, at 238 (citing Matter of Rikert, 25 Misc2d 492).
Notwithstanding the use of the terms "legatee" or "otherwise" in describing a person interested under §147 of the Surrogate's Court Act, case law read in the requirement that the person could object only if his or her interest in the estate was reduced or divested by the will. See Matter of Brumer, 69 AD2d 438, 442 (2d
"1. The interest 'in the event' or interest in any property affected by the probate of a will, sufficient to entitle the owner thereof to file objections must be an interest adverse to the will." (McKinney's Cons. Laws, Book 58A, SCPA 1410, pp. 318-319.).
Courts have held that the interest must be pecuniary. See, e.g., Matter of Silverman, 91 Misc2d 125 (Surr. Ct. N.Y. Co. 1977); Matter of Turner, supra; Matter of Eisenfeld, 52 Misc2d 209 (Surr. Ct. Kings Co. 1966). Thus, if a person would receive more in intestacy than under a will, he may object, but if he would receive less, he may not, and a person who would receive benefits under an earlier will can object to a later will that disinherits him or gives him less.1
In our hypothetical, you would not have standing to object to Aunt Jean's will or even a part of it under §1410 because you, as recipient of a $1 million bequest, would not be adversely affected if the will were admitted to probate. On the other hand, your aunt's children would have standing to object because they would take more in intestacy than they would if the will, which takes $1 million away from them, were admitted.
What about that part of the will that nominates your nemesis Clifford as executor? Is that an objection to probate? Would you have the right, under §709 to object to his appointment? The two end results of a probate proceeding, the admission of the will to probate by decree and the granting of letters to a fiduciary, create two different, albeit, sometimes overlapping, classes of persons who have standing.
Interplay of SCPA §§709 and 1410
The interplay of SCPA §§709 and 1410 is evident in Matter of Brumer, 69 AD2d 438 (2d.
In his dissent, Justice Cohalan stated that SCPA §§103(39) (defining "person interested") and 709 bear no relationship to §1410. One's right to object to all or a part of a will under §1410 should be viewed as separate and distinct from one's right to object to the grant of letters under §709. See
'Matter of Judson'
In Matter of Judson, NYLJ Nov. 1, 1995 at 32, col. 1, decedent made 17 preresiduary bequests among various relatives and charities with the balance of the estate distributed among an individual and charities. Objections were made by all of the noncharitable legatees and eight distributees who do not take under the will and alleged that the propounded will was not duly executed, that decedent lacked testamentary capacity and that the attorney draftsperson exercised undue influence and fraud to procure his nomination as executor. Surrogate Eve Preminger conceded that the nondistributee objectants would not suffer any pecuniary loss if the propounded will were admitted to probate and held that they therefore lacked standing to file objections to probate. However, the court found that they had the right to challenge the eligibility of the nominated executor and stated that "standing to file objections to the qualification of a fiduciary derives from SCPA 709 which provides that any person interested in the estate may object to the grant of letters" and that "a 'person interested' has been defined to include legatees who object to the nomination of the fiduciary."
In Matter of Patterson, NYLJ, Jan. 8, 2001 at 32, col. 3, Surrogate Albert J. Emanuelli held that a nominated fiduciary (with no pecuniary interest in the decedent's estate) had standing to object to the appointment of a nominated co-fiduciary. Interestingly, this decision was rendered before §709 was amended to include a nominated fiduciary among persons who may object to a fiduciary's appointment.2 The objectant was the decedent's nephew and one of three nominated executors, the other two being the decedent's attorney/draftsperson and a corporate executor. The nephew, joined by the decedent's children, objected to the appointment of the attorney/draftsperson based on clauses in the will and a separate writing providing for enhanced executors' commissions on property that would otherwise be non-commissionable.
Surrogate Emanuelli stated that "fiduciaries with no pecuniary interest in the estate are imbued with authority to act upon perceived improprieties regarding the integrity of wills or the conduct of their co-fiduciaries," (noting that §1410 authorizes a fiduciary to file objections to the probate of a later instrument with permission of the court for good cause shown and that §711 permits a fiduciary to seek to suspend, modify or revoke a co-fiduciary's letters) and that a restrictive reading of §709 was not supported by "today's heightened sensitivity to the ethical considerations associated with the nomination and appointment of attorney/draftsperson/fiduciary." Given a co-fiduciary's inherent authority to maintain an action for revocation of another fiduciary's letters, the court stated that "logic dictates that he be permitted to contest [his co-fiduciary's] eligibility in the first instance."
Departing from its expansive approach in Brumer, the Second Department denied standing to distributees, each of whom received their respective intestate shares under their mother's will, to object to that portion of the will which nominated their brother as executor because their pecuniary interests were not adversely affected. Estate of Wang, 5 AD3d 785 (2d.
More recently, in Estate of Greenspan, NYLJ, Jan. 11, 2008 (Surr. Ct. N.Y. Co.), Surrogate Kristen Booth Glen compared standing as a person adversely affected under §1410 and a person interested under §709 and noted that "a beneficiary has an interest in ensuring that the estate is administered by honest and reliable fiduciaries, chosen voluntarily by the testator, and can object to a fiduciary appointment pursuant to SCPA §709." Greenspan, fn. 1 (citations omitted).
Conclusion
Regardless of whether one has a pecuniary interest that is adversely affected or whether one is a recipient of a general bequest, it seems to us that their interests are the same: ensuring that the proper person administer the estate.3 Focusing on form, rather than substance of an objection, only serves to diminish the importance of that interest and hinders a court's "independent duty to appoint only persons who are qualified to receive letters" and "to inquire into allegations which relate to a fiduciary's qualifications."4 However, since a court may be inclined to take a strict reading of the statutes, it would be prudent for an objectant to a fiduciary's appointment to set forth those objections with particularity and the section of the statute from which he derives his right to object.
Endnotes:
1. See Margaret Valentine Turano, Practice Commentaries,
2. See L. 2003, c. 612, §1.
3. See Matter of D'Onofrio, 97 Misc2d 250 (Surr. Ct. Bronx Co. 1978); Brumer, supra; Greenspan, supra.
4. Patterson, supra.
Reprinted with permission from the May 21, 2008 edition of the New York Law Journal © 2009 Incisive US Properties, LLC. All rights reserved. Further duplication without permission is prohibited.