Surrogate Kristin Booth Glen
Petitions have been filed simultaneously by decedent’s two children, Eva and Nicolle, one for letters of administration, the other for ancillary letters of administration. Decedent’s will was admitted to probate in Florida. Eva, as co-trustee, claimed that decedent was a domiciliary of New York, and the Florida court incorrectly assumed original jurisdiction over decedent’s estate. She sought issuance of letters of administration to the Public Administrator. Nicolle, as personal representative of decedent’s estate, sought issuance of ancillary letters of administration to herself. The court noted that in a successful “Joint Petition for Administration” for appointment of Eva and Nicolle as personal representatives of decedent’s estate, Eva took the position, with Nicolle, that decedent died a domiciliary of Florida. Hence, the court ruled as Eva prevailed in the Florida court, she could not now assume a contrary position, noting the doctrine of judicial estoppel or “inconsistent positions” precluded a party who assumed one position in a prior legal proceeding and secured a judgment in her favor from such position, could not assume a contrary position in another action simply because her interests changed. Thus, Eva’s petition was denied.