In this contested miscellaneous proceeding, William Thomas (hereinafter the petitioner), has petitioned to revoke the letters testamentary previously issued to David Thomas (hereinafter the executor) and upon revocation appointing the Public Administrator of Kings County as the fiduciary herein. The executor opposed the application in an Answer.

Angela Thomas (hereinafter the decedent) died on December 3, 2011 survived by two sons: the petitioner and the executor. The decedent's will was admitted to probate by Decree dated April 15, 2013 and essentially leaves the decedent's estate to her two sons equally. In the will, both the petitioner and the executor were nominated as co-executors. However, the petitioner was ineligible to serve and thus disqualified as a fiduciary in this estate. The petitioner also requested that the executor be disqualified as fiduciary. After a hearing, this Court dismissed the objections and directed that letters testamentary issue to the executor.

The parties are now before this Court with the current application to revoke the executor's letters. A hearing was held wherein the petitioner testified in support of his [*2]petition to revoke the letters testamentary issued to the executor. No testimony was offered on behalf of the executor.

The statute provides that the court has the authority to remove a fiduciary, inter alia, where the fiduciary has improvidently managed or injured the property committed to his charge, obtained the grant of letters by a false suggestion of a material fact or willfully refused or without good cause neglected to obey any lawful direction of the court contained in any decree or order or any provision of law relating to the discharge of his duty (SCPA 711 (1), (3) and (4)). The burden of proving the existence of such grounds for removal lies upon the party alleging it (Matter of Krom, 86 AD2d 689 [3d Dept 1982]).

The petitioner argued that the executor has not properly managed the estate assets and should be removed pursuant to SCPA 711 (1). He argues that the decedent's real property has not been sold, although he testified that he learned that the premises were listed with a real estate broker. He further testified that the outside of the premises was generally unkempt in that there was a lot of debris on the outside of the house and there is overgrowth in the yard. Furniture and other personal property were removed from the decedent's home and placed in storage, but the petitioner alleged that some of the decedent's belongings were missing from the stored items. He also stated that some of his personal belongings were missing, such as his tools and some of his toys and "hobby-things". He was allowed to examine the items in storage and take certain items with him. The petitioner further testified that the tenant made complaints about the heat and a leak in her window. The petitioner stated that the executor "harassed" the tenant who held possession of an apartment in the decedent's real property when he asked her for rent and there was some sort of litigation between the executor and the tenant. The testimony showed that the tenant has vacated the premises.

The petitioner further requests removal upon the ground that the executor obtained his letters through a material misrepresentation of fact to the court pursuant to SCPA 711 (4). The petitioner alleged that the executor testified at a prior hearing that he did not have a key to the decedent's home during a time when he served as guardian while his mother was alive and that the petitioner had the same access to the decedent's home as executor did. The petitioner testified that on April 9, 2013, he saw the executor in the decedent's home with two men who appeared to be installing an alarm system. According to the petitioner, the executor left the residence with two shopping bags, however, he was not allowed to view the contents of the bags. The petitioner argues that the incident showed that the executor held a key to the premises and that he misrepresented this fact to the court at the hearing to determine his eligibility.

Finally, the petitioner argues that the executor has failed to comply with a stipulation dated April 15, 2013 filed with the court requiring the executor to complete and execute certain paperwork regarding a joint account held by Wells Fargo to facilitate distribution of the funds to the parties (see SCPA 711 (3)). At the hearing, the petitioner admitted that the executor completed the paperwork for the joint account that is the subject of the stipulation. However, the petitioner alleges that the executor has failed to complete the necessary paperwork for an IRA account. The stipulation before the court only addresses the joint account and the executor has admittedly complied with its [*3]terms by submitting the necessary paperwork to the bank.

None of the allegations of the petitioner alone rise to the level of mandating removal of the fiduciary. A testator has the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and that selection is not to be lightly discarded (see Matter of Flood, 236 NY 408 [1923]; Matter of Leland, 219 NY 387 [1916]). However, the Surrogate may disqualify a person from serving as a fiduciary where the friction between such person and a beneficiary interferes with the proper administration of the estate (see Matter of Jurzykowski, 36 AD2d 488 [1st Dept 1971], affd 30 NY2d 510 [1972]; Matter of Thompson, 232 AD2d 219 [1st Dept 1996]). Mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal unless that friction interferes with the administration of the estate (see Matter of Venezia, 71 AD3d 905 [2d Dept 2010]; Matter of Edwards, 274 App Div 244, 244 [4th Dept 1948]; Matter of Miller, 48 Misc 2d 815 [Sur Ct, New York County 1965]). In determining whether removal is appropriate, the court must consider whether the party's actions endanger the estate or seriously impede its administration (see Matter of Braloff, 3 AD2d 912 [2d Dept 1957] affd 4 NY2d 847 [1958]).

This estate has a history of animus between the parties. Even before the decedent's will was admitted to probate, the parties could not agree upon a proper fiduciary. The will nominated both parties. The petitioner was admittedly ineligible to serve and filed objections to the executor's appointment requiring a hearing prior to the executor's appointment.

This Court then received a motion for summary judgment in lieu of complaint pursuant to CPLR 3213 transferred from the Supreme Court, Kings County wherein the petitioner sought to compel the release of funds from a joint bank account held by the decedent, the petitioner and the executor at Wells Fargo. According to the papers, the executor failed to complete the necessary paperwork to effectuate the release of the funds to the parties. After a conference, the parties reached a settlement for the release of the funds.

The petitioner subsequently commenced this proceeding to revoke the letters testamentary issued to the executor as previously discussed in detail above.

Thereafter, the executor presented an application to this Court seeking an order directing the deposit of monies held in an IRA account into an estate account or, in the alternative, directing the payment of all expenses relating to the estate. This Court declined to entertain the proceeding as there appeared to be no restrictions in the letters of administration to prevent the collection of estate assets in a Decision and Order dated July 13, 2013.

The petitioner then submitted an application to this Court seeking an order directing the executor to take the necessary steps to enable the petitioner to obtain his share of the proceeds in a Wells Fargo IRA account. Again, this Court, in a Decision and Order dated March 11, 2014 declined to entertain the application as it appeared to be a dispute between living parties.

Still more recently, the executor submitted an application for advice and direction regarding the sale of real property wherein he sought the court's advice in determining whether to sell the decedent's real property to a prospective purchaser for $1,800,000 without a mortgage contingency or to sell the property to the executor and his wife for $1,850,000 with a mortgage [*4]contingency clause. Again, this Court, in a Decision and Order dated August 31, 2015, declined to entertain the application without prejudice to an application to modify the restrictions in the letters testamentary, as the executor failed to show any extraordinary circumstances requiring the court's intervention in that manner.

In essence, the animus of the parties and their inability to agree and cooperate in even the most basic sense, has caused continuous, hostile and unnecessary litigation in this Court involving assets that pass inside and outside the decedent's estate. Despite the parties herein being the only beneficiaries under the decedent's will that provides for the estate to be evenly distributed between them, the parties have failed to take even the smallest actions without court intervention.

The conditions herein do not constitute a circumstance of mere friction or hostility between the parties, but has created an environment so uncooperative and pernicious as to be harmful to the administration of this estate by retarding its progress toward closure. Despite having letters testamentary for well over two years, the executor has failed to secure the sale of the decedent's real property in order to distribute the major asset of this estate. The parties have failed to cooperate in collecting assets that simply require the completion and submission of paperwork to the appropriate financial institutions without court intervention.

The totality of the circumstances herein requires the court to intervene and appoint a neutral party to preserve, manage and administer estate assets. Therefore, the petition of William Thomas seeking an order revoking the letters testamentary issued to David Thomas and the appointment of the Public Administrator of Kings County is granted. The letters testamentary issued to David Thomas by Decree dated April 15, 2013 are hereby revoked. Letters of administration c. t. a. shall issue to the Public Administrator of Kings County forthwith. David Thomas shall turn over all estate assets and any necessary documents and papers relating to the decedent and/or her assets to the Public Administrator of Kings County forthwith.

This constitutes the decision and order of the court.