Surrogate Edward McCarty III
Objections were interposed in this action for preliminary letters testamentary. Decedent was survived by two children, Carol and Michael Barboni. Petitioner Petersen was the nominated executor and sole/residuary legatee, described in the will as a friend. The court noted the testator’s wishes on the appointment of a fiduciary, even on a temporary basis, would be honored absent serious and bona fide allegations of misconduct. It stated, however, preliminary letters may be denied where the nominated executor’s eligibility was at issue. The court noted that it was not surprising Carol and Michael were not pleased with their father’s disposition of his estate. Yet, it found both children averred "in very broad strokes without any documentation or supporting evidence" their father was unduly influenced by Petersen, and that he lacked testamentary capacity. The court ruled the children failed to assert, beyond conclusory allegations, good cause or serious wrongdoing by Petersen to permit the court to nullify decedent’s choice of a fiduciary. Such assertions were insufficient to provide a basis for denial of preliminary letters. Thus, Petersen’s application was granted, and as no extraordinary circumstances existed, no bond was required.
