Surrogate’s Court Properly Declined to Suspend the Fiduciaries’ Letters Testamentary and Letters of Trusteeship Pending a Hearing to Determine the Contested Facts

The Second Department determined Surrogate’s Court properly declined to suspend the fiduciaries’ letters testamentary and letters of trusteeship pending the outcome of an accounting proceeding.  Although allegations of comingling property would support such a suspension, the allegations were contested and it would be an abuse of discretion to order the suspension without a hearing:

The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to “a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established” … .

Nevertheless, pursuant to SCPA 719(7), “letters [issued to a fiduciary] may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process. . . . [w]here he mingles the funds of the estate with his own or deposits them with any person, association or corporation . . . in an account other than as fiduciary” (SCPA 719[7] [emphasis added]). Fiduciary letters also may be suspended without process “[w]here any of the facts provided in 711 are brought to the attention of the court” (SCPA 719[10]).

However, as noted in Matter of Duke (87 NY2d 465),

“[w]hile the Surrogate is clearly granted the exceptional authority to summarily remove executors without the formality of commencing a separate proceeding, the authority to exercise the ultimate sanction summarily is not absolute. The Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding” (Matter of Duke, 87 NY2d at 472-473 [internal citations omitted; emphasis added]).

Thus, revoking a fiduciary’s letters without a hearing pursuant to SCPA 719 will constitute an abuse of discretion “where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy” … .

Contrary to the appellants’ contention, the allegations in this case are sharply disputed and give rise to conflicting inferences regarding the Fiduciaries’ alleged misconduct. Matter of Mercer, 2014 NY Slip Op 05186, 2nd Dept 7-9-14