Estate of Yuen Gee, Deceased
2009-2104
SURROGATE'S COURT OF NEW YORK, BRONX COUNTY
30 Misc. 3d 1227A; 926 N.Y.S.2d 348; 2011 N.Y. Misc. LEXIS 489; 2011 NY Slip Op 50237U
February 24, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NEW YORK SUPPLEMENT.
[**348] [*1227A] Wills--Probate--Waiver and Consent to Probate. Wills--Construction--Intention of Testator.
COUNSEL: [***1] For Peter Wong and Mabel Wong, preliminary executors: Lawrence G. Nusbaum, Jr., Esq. 
For Billy Gee, son: Richard R. Schmidt, Esq. 
For infant grandchildren: Daniel R. Antonelli, Esq. , guardian ad litem.
JUDGES: Lee L. Holzman , J.
OPINION BY: Lee L. Holzman
Lee L. Holzman , J.
In this probate proceeding, the decedent's son, who is his sole distributee and the sole income beneficiary of a testamentary trust consisting of the entire residuary estate, seeks to revoke his waiver and consent to probate so that he may conduct SCPA 1404 examinations and file objections to probate, if appropriate. In addition, the son seeks an order directing the preliminary executors to discontinue a pending landlord/tenant holdover proceeding they commenced against him in connection with his occupancy of a portion of real property that appears to be the sole asset available to fund the trust. The contingent remaindermen of the trust are the movant's four sons, two of whom are infants for whom a guardian ad litem was appointed.
A will dated January 30, 2000 and a codicil dated July 20, 2009 are offered for probate. The codicil amended the will to include a newborn grandson. Both the will and codicil were drafted by an attorney and their [***2] execution was attorney-supervised. The will and codicil were both witnessed by three witnesses who also executed self-proving affidavits. The propounded instrument leaves all tangible personal property to the son and, in paragraph FOURTH (A) and (C), places the entire residuary estate in trust with all net income payable to the son quarter-annually or at more frequent intervals if necessary during his lifetime, with the remainder divided equally among the decedent's grandchildren. Paragraph FOURTH (B) vests "sole and absolute discretion" in the trustees to invade the corpus of the trust in such amounts and at such times as they shall deem appropriate and necessary for the health, welfare, support and maintenance of the son, and directs that such invasion "shall" be made "without considering the effect such invasion may have upon any third persons, including [the remaindermen]."
Jurisdiction in the probate proceeding is complete. The son and the two adult grandchildren filed waivers and consents to probate. Preliminary letters testamentary, limited by SCPA 805 (3), issued to the proponents who are also the nominated trustees.
The only asset of the estate appears to be a two-family home [***3] in the Bronx, valued at $450,000 in the probate petition. The upstairs apartment is occupied by the son, his wife and the youngest grandchild, and a tenant rents the downstairs apartment. Shortly after obtaining preliminary letters, the preliminary co-executors commenced separate holdover proceedings in the Civil Court, Bronx County, one against the son, and the other against the former downstairs tenant who allegedly was paying less than fair market value rent to the son who, in turn, failed to turn it over to the fiduciaries. At that time the preliminary executors contended that the annual cost to maintain the property exceeded all liquid estate assets because the son kept the money paid by the downstairs tenant and simultaneously failed to pay fair market use and occupancy for the upstairs apartment that he occupies. In response to the holdover proceeding, the son commenced this proceeding. Pending the further order of this court, the preliminary executors were temporarily restrained from proceeding with the holdover proceeding against the son.
In support of his application the son contends, inter alia, that: (1) at the time he executed the waiver and consent he did not have a copy [***4] of the will or codicil and was not represented by independent counsel; (2) he has a good faith basis to oppose probate as the decedent had a limited education, could barely read or write English, and likely did not understand the terms and conditions of the will; (3) the preliminary executors are in breach of their fiduciary duties as there is no mortgage on the property, he pays all its expenses, yet they seek to evict him and charge exorbitant rent solely to increase their commissions, and they incurred increased legal fees to the estate and forced him to pay legal fees to defend the holdover proceeding, all of which harmed him, as income beneficiary, as well as the remaindermen; and, (4) he has offered to pay insurance premiums and other expenses for the realty but the preliminary executors failed to provide those bills, and they should be directed to submit all bills to him so he can pay them.
In support the son annexes an affidavit by one of his adult sons who states that: (1) like his father, he never received a copy of the will prior to executing his waiver and consent; and, (2) he joins in his father's request to examine witnesses at the SCPA 1404 proceeding as, at the time [***5] of execution of the instrument, he resided with the decedent who had a problem reading and writing English, and the preliminary executors continuously called the decedent about executing the will. Of course, as a non-distributee, the adult grandson lacks any standing to object in this probate proceeding (see SCPA 1410 and EPTL 4-1.1 [a] [3]).
The preliminary executors oppose the application contending that: (1) it was the son who, upon the birth of his youngest child, arranged for preparation of the codicil and its execution, and the son and his wife were present when the decedent executed that document which restated and reaffirmed all the terms of the original instrument; (2) even assuming, arguendo, that the son did not receive a copy of the instrument, he knew its contents as he attended two meetings with the preliminary executors' attorney; (3) at the first meeting the probate process and the terms of the instrument as well as the problem with estate income and expenses were explained, subsequent to which the son signed the probate petition (for reasons best known to the parties), submitted a family tree, obtained waivers and consents from his two adult children, provided addresses [***6] for his infant children to be served, informed the preliminary executors of estate assets and appeared in court; (4) after the second meeting where the son was asked to pay a monthly fair market rent, he became non-communicative and then refused to allow a real estate agent to enter the premises to estimate the rent that could be charged for the downstairs apartment, to show it to prospective renters, and provide an appraisal and advice as to whether the realty should be placed on the market for sale; (5) as a result, and due to the mounting estate expenses, they were forced to commence the summary holdover proceedings, and although the former downstairs tenant vacated and a new downstairs tenant now pays fair market rent, the son refuses to execute a lease; and, (6) essentially, the son seeks a "free ride" or desires to pick and choose what realty costs are paid and when, which will only leave them guessing as to the existence and identity of creditors and jeopardizes the interests of the remaindermen. They note that, presently, the estate has no funds, and assert that the son lacks any good faith basis to revoke his waiver and consent or to examine the witnesses to the will, and [***7] the holdover proceeding should be permitted to proceed.
The son replies that any income he received from the former downstairs tenant was applied to the cost of maintaining the property, he should not be required to pay use and occupancy for his own apartment, and vacatur of his waiver and consent is appropriate; in the alternative, he urges that a hearing is warranted on the issue of the delivery of the instrument to him prior to his execution of the waiver and consent.
After a conference with the court on the son's application, the parties entered into a stipulation in open court, and it appears that a portion of the stipulation relating to use and occupancy payments by the son was extended by the parties. In essence, the stipulation provides that the temporary restraining order prohibiting the preliminary executors from continuing the holdover proceeding against the son would remain in effect in order to preserve the status quo pending a determination of the merits of the son's application, and the son would pay the preliminary executors the sum of $900 per month. Although the parties were to make further attempts to resolve the matter with the assistance of the guardian ad litem, [***8] to date, no resolution has been achieved. Instead, it appears that the situation has deteriorated as, instead of paying $900 per month to the preliminary executors, at least, for October and November, 2010, the son only paid Con Edison bills. The son contends that he was justified in withholding the rent because the preliminary executors failed to pay those bills as agreed. The parties continue to dispute the actual monthly and annual cost to maintain the property.
The guardian ad litem notes that, according to the preliminary executors, the estate liabilities now exceed $30,000, and the carrying costs of the property total $12,600 per year. He indicates that the downstairs apartment yields rent of only $9,600 per year, leaving an annual deficit of $3,000, and a conservative estimate of the fair market value rent for the upstairs unit occupied by the son is $10,800 per year. According to the guardian ad litem for the infant grandchildren, the only options available to meet maintenance costs of the property is to ensure that the property generates sufficient income through, either: (1) the rental of both units; or, (2) if the son prefers to occupy one unit, the rental of one unit with [***9] the son contributing an amount equal to any deficit; or, (3) selling the realty and retaining the proceeds in an income-producing trust. The guardian ad litem notes that the latter option is not preferred by the son, who lives with one infant remainderman, and the guardian ad litem is in a difficult position as he also represents the interests of the other infant remainderman who does not live with the son.
The guardian ad litem reports that the son has had ample time to agree to one of the options, but has refused to entertain or accept any, he has not suggested any viable alternative resolution, and he consistently has refused to contribute to the preservation and maintenance of the property. He concludes that the son's failure to contribute to such maintenance amounts to waste and warrants the denial of his stay application. In addition, the guardian ad litem favors rejection of the son's attempt to revoke his waiver and consent, asserting that there is no prima facie evidence of undue influence, the self-proving affidavits create a presumption of legitimacy, and the son only sought to revoke his waiver and consent after the preliminary executor correctly took action to prevent [***10] the son from operating the property as if he had the sole legal and beneficial interest in the property.
The first issue addressed is whether the son should be permitted to withdraw his waiver and consent to probate so that he may pursue discovery, and, thereafter, decide if he should file objections to probate. To revoke or withdraw his waiver and consent to probate in this pre-probate context, the son must demonstrate the merits of his application and a reasonable probability of success, notwithstanding that more relaxed proof of "good cause" is allowed before a decree is entered (see Matter of Frutiger, 29 N.Y.2d 143, 149-150, 272 N.E.2d 543, 324 N.Y.S.2d 36 [1971]; Matter of Bono, 29 Misc 3d 1211 [A], 2010 NY Slip Op 51792 [U] [2010]; Matter of Gunz, NYLJ, Jun. 5, 1992, at 29, col 2).
Here, the son executed a waiver and consent to probate on September 25, 2009. His application to revoke that waiver and consent was filed on April 14, 2010, almost seven months later. The son's alleged basis to revoke is that he lacked independent counsel and was not served with the propounded instrument at the time he executed his waiver and consent, and the decedent had difficulty reading and writing the English language. Considering [***11] that the instrument and codicil were drafted by an attorney, their execution was attorney-supervised, the self proving affidavits, the absence of any evidence or allegation of undue influence or lack of testamentary capacity, and that there are no other interested persons, the son's allegations as to his potential basis for filing objections are conclusory. Furthermore, the son has not disputed the allegations that prior to executing the waiver and consent, he met with the preliminary executors' attorney who informed him about the probate process and the terms of the will. Thus, it appears that the son only questioned the validity of the will after the preliminary executors would not allow him to operate the realty as he pleased. In short, the son fails to demonstrate any merit to or reasonable probability of success on his potential objections to probate (cf. Matter of Bono, 29 Misc 3d at 1211 [A]). Accordingly, the branch of the application seeking to revoke the waiver and consent is denied.
The issues raised with respect to the holdover proceeding against the son are more problematic. Here, unfortunately, shortly after the commencement of the probate proceeding, the relationship [***12] between the son and the preliminary executors deteriorated; on the one hand, the fiduciaries and their counsel believed that the son was required to pay fair market value for his use and occupancy of the property in order to maintain the property and possibly increase the value of the potential trust estate for the remaindermen while, on the other hand, the son believed he could live at and maintain and manage the property himself, in any manner he saw appropriate.
Neither position is entirely correct. When construing or reviewing the terms of a will or trust instrument, the prime consideration is the intention of the testator as expressed therein (see Matter of Wallens, 9 NY3d 117, 122, 877 N.E.2d 960, 847 N.Y.S.2d 156 [2007]; Matter of Fabbri, 2 NY2d 236, 239, 140 N.E.2d 269, 159 N.Y.S.2d 184 [1957]; Matter of Terranova, 59 AD3d 453, 455, 873 N.Y.S.2d 651 [2009]; Matter of Stavin, 56 AD2d 68, 391 N.Y.S.2d 412 [1977], affd 43 NY2d 669, 371 N.E.2d 535, 400 N.Y.S.2d 817 [1977]). Here, a review of paragraph FOURTH reveals that the primary concern of the decedent was to place the economic interests of the son first, even to the exclusion of the remaindermen, assuming that, in the trustees' sole discretion, such exclusion is appropriate and necessary for the health, welfare, support and maintenance of the son.
The son is [***13] entitled to all of the trust income. It appears that if the realty was sold for approximately its appraised value, the sum paid to the trustees would be in the $400,000 to $425,000 range. It also appears that the son is willing to accept a reduction in the rent for the apartment that he is occupying in lieu of income from the trust. Based upon the intent of the testator, as gleaned from the testamentary trust provisions, it appears that the fiduciaries would be in violation of their obligation to carry out the testator's intent should they insist upon selling the realty, unless the reduced rent that the son is willing to pay plus the fair market rent paid by the tenant of the other apartment is insufficient to cover the projected administration expenses of the estate and trust as well as the cost of maintaining the property.
The son and the preliminary executors appear to agree, at least in principle, with the aforementioned analysis of the circumstances under which the son's family could continue to occupy one of the apartments instead of selling the property with the concomitant result of evicting the son's family. Unfortunately, the parties have been unable to agree both upon the [***14] reasonableness of the expenses and legal fees incurred by the preliminary executors to date and upon the terms of the interim stipulation entered into on the record in open court. Although it clearly would be a breach of their fiduciary duty for the fiduciaries to insist upon a sale for the sole reason that retention of the property would result in their receiving a smaller commission, it is equally clear that the trustees, and not the son, have the right to manage the property (see EPTL 7-2.1). Furthermore, it is also clear that it is not feasible for the son to occupy the apartment rent-free or to agree to pay a reduced rent and then not honor that agreement. In fact, the guardian ad litem is concerned that the son is not willing to agree to any feasible plan that would allow his continued occupancy of the apartment.
Accordingly, based upon this state of the record, the temporary restraining order previously entered by this court with regard to the holdover proceeding against the son is lifted as of April 1, 2011, unless by March 25, 2011, the son submits to the court, the guardian ad litem and the preliminary executors' attorney proof that he has paid a total of at least $5,400 to [***15] either the preliminary executors or Con Edison for his use and occupancy of the apartment for the six-month period from October, 2010 through March, 2011. In the event that the son has not paid that amount for that time period, he may pay the entire amount or any outstanding balance thereon at any time up to March 25, 2011. In the event that the son timely establishes that he has paid the sum of $5,400 for the six-month period, the court will render a supplemental decision and order further extending the temporary stay and directing all parties, their respective counsel and the guardian ad litem to appear at a conference dealing with all of the issues relating to the realty and to produce certain documents at that time.
This decision constitutes the order of the court: (1) denying the branch of the son's application seeking to revoke or withdraw his waiver and consent to probate; and, (2) subject to modification in the event that the son establishes that he paid $5,400 as directed herein, denying the branch of the son's application seeking an order directing the preliminary executors to discontinue the holdover proceeding as well as lifting the temporary restraining order as to the [***16] holdover proceeding against the son as of April 1, 2011. The Chief Clerk shall mail a copy of this decision and order to all counsel, including the guardian ad litem.
Finally, the court is satisfied that the testator executed the will dated January 30, 2000 and codicil dated July 20, 2009 in compliance with the statutory requirements and that, at the time of their execution, the testator was competent to make a will and was free from restraint. Accordingly, a decree shall be settled admitting the will dated January 30, 2000 and codicil dated July 20, 2009 to probate (EPTL 3-2.1; SCPA 1408). Of course, this decision and order is without prejudice to any party taking any position in an appropriate proceeding with regard to whether the estate expenses incurred to date were necessary or reasonable, or whether there is any basis for not allowing the proponents to serve either as executors or trustees.
Proceed accordingly.