Surrogate Stacy Pettit

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Petitioner Kenneth Marriott moved for summary judgment dismissing objections of son Robert, and admitting decedent wife’s will to probate, as well as issuing him letters testamentary. Two other children consented to the petition, and while Robert did not object to probate of the will, he objected to Kenneth’s appointment as executor of the estate arguing he was unqualified to act as he lacked the physical and mental capacity to do so. The court noted, however, Kenneth was issued preliminary letters testamentary and marshalled most of the estate’s assets, provided an full intermediate accounting, paid all of decedent’s bills and funeral expenses, and waived his statutory commissions. The motion papers established that substantially all of the work of administering the estate was completed, arguing appointing Robert as executor would further delay the matter, and cause additional financial harm to the estate. Accepting Robert’s allegations Kenneth “has dementia” and lacked mental capacity to act as executor, he failed to meet his burden of establishing Kenneth was not qualified to act as fiduciary, noting there was no harm to the estate or individual beneficiaries. Thus, dismissal was granted, letters issued to Kenneth and the will was admitted to probate.