DECISION In this contested probate proceeding, Ross Baptiste (the petitioner) seeks to probate an instrument purporting to be the last will and testament dated April 8, 2015 (the propounded instrument) of Kathleen Baptiste (the decedent). The decedent died on January 1, 2019 and is survived by five sons, namely Lloyd Baptiste (Lloyd), Kester Baptiste (Kester), Anthony Baptiste (Anthony), Anderson Baptiste (Anderson), and the petitioner. Pursuant to the propounded instrument, the decedent left her estate in equal shares to her five sons. The petitioner is the nominated executor and Anthony is the nominated successor executor. Jurisdiction has been obtained over all necessary parties. Verified objections have been filed by Anderson, pursuant to which he asserts that he is objecting for himself and on behalf of Lloyd, Kester and Anthony, that the decedent lacked testamentary capacity, and that the petitioner is ineligible to serve as fiduciary. On October 2, 2019, the petitioner, Anderson, and Anthony appeared as self-represented litigants for a conference with the court (the conference). At the conference, the parties entered into a written stipulation and filed it with the court. According to the terms of the stipulation, the parties consented to the court determining the matter on the papers submitted, which includes the instant petition and objections, and a petition for preliminary letters and objections to the preliminary letters. During the conference with the court, Anderson stated that he had no additional facts to support his objections that the propounded instrument was procured by undue influence or that the decedent lacked capacity to execute the propounded instrument on April 8, 2015. As noted above, the propounded instrument devises all the decedent’s assets in equal shares to her five sons, which is the same as intestate distribution. Anderson stated that the only real disagreement was that he did not want the petitioner to serve as executor because the petitioner was dishonest and cannot be trusted with the estate assets. Anthony concurred. The bulk of the decedent’s estate is real property located at 579 Crescent Street (the premises). The parties agree that there is a reverse mortgage on the premises estimated to be in excess of $500,000.00, and that the premises needs to be sold as quickly as possible to avoid foreclosure. The Court normally gives great weight and deference to the wishes of the decedent in issuing letters testamentary; however, the petitioner’s statements raise questions regarding his honesty and his domicile. At the conference, the petitioner stated that Anderson had obtained a realtor to sell the premises. However, upon a request for the written agreement with the realtor, the petitioner admitted to having contracted with the realtor, in contradiction to his initial assertion that it was Anderson. Early in the conference, the petitioner stated that he currently had a buyer for the premises, confirmed that the purchase price is $550,000.00, and maintained the necessity for granting him preliminary letters. However, at the close of the conference, the petitioner stated that he did not have a buyer for the premises and that the premises had been taken off the market for months. Upon further inquiry, the petitioner was unable to identify exactly when the premises was taken off the market and suggested that it may have been sometime in April 2019. This misrepresentation is particularly troubling considering the petitioner’s application for preliminary letters filed with the court on July 9, 2019, which is predicated upon the existence of a buyer for the premises and the urgent need to execute a contract of sale for the premises. The petition for preliminary letters does not contain a proposed contract, a realtor agreement, or any indicia of the existence of a potential buyer. The petitioner maintains that the misrepresentation was made “on principle” because he was honoring the decedent’s wishes. The verified objections to the preliminary letters assert that the petitioner was attempting to sell the premises to tenants1 residing in the premises, without an appraisal and potentially under market value. The petitioner initially stated that the premises had been appraised but when asked to provide the appraisal, he conceded that he never had the premises appraised. According to the instant petition, the premises is valued at an estimated $699,000.00 and according to the petition for preliminary letters, the petitioner seeks to enter into a contract of sale for the premises in the amount of $550,000.00. The petitioner has not presented any reliable information establishing that the alleged sale price is the fair market value for the premises. The petitioner asserts that he lives at the premises on the first floor, as well as in England, and travels back and forth to both residences. Anderson asserts that he lives on the first floor of the premises, his daughter lives in the basement of the premises, tenants reside on the second floor of the premises, and that the petitioner does not reside at the premises. Additionally, during the conference, the petitioner expressly stated that he lives in Florida with his daughter. It is unclear where the petitioner is domiciled. The Court finds that the petitioner is ineligible to serve as executor in the decedent’s estate because he has shown repeated lack of candor regarding the value of, and management of, decedent’s estate assets, as well as improvidence, and unfitness for the execution of the office. Further, it is unclear whether he is domiciled at the premises, as he averred in his verified petition. SCPA 707. Anthony is the nominated successor executor. However, Anthony asserts that Anderson is better suited to serve as the fiduciary of the decedent’s estate because Anderson both lives at the premises and is the most familiar with the decedent’s finances. Anderson is willing to serve as administrator c.t.a. in the decedent’s estate and is a beneficiary of the propounded instrument. SCPA 1418. Moreover, where the parties are unable to agree on the appointment of a fiduciary, the court will pick the fiduciary who is chosen by those entitled to the largest share in the estate. SCPA 1001(3)(a); Estate of Mercer, 26 Misc.3d 1231(A)(Surr. Ct., Bronx Cty., 2010). Here, Anderson and Anthony are entitled to a combined 2/5 share of the decedent’s estate, while the petitioner is entitled to a 1/5 share.2 Finally, all parties agree that the premises, which appears to be the only asset of the estate, needs to be sold as soon as practicable to avoid foreclosure. The administration of this estate is a fairly simple matter that should be resolved promptly, and it is in the best interests of the estate that letters issue forthwith. Based upon the proof submitted, the court is satisfied that the propounded instrument is genuine, was validly executed, and that at the time of execution, the decedent was competent to make a will and was not under restraint or undue influence. SCPA 1408; EPTL 3-2.1. For all the foregoing reasons, the propounded instrument is admitted to probate and letters of administration c.t.a. shall issue to Anderson Baptiste upon duly qualifying according to law. Anderson Baptiste shall obtain a bond equal to one-fifth (1/5) of the value of the estate. Settle decree. Dated: October 18, 2019 Brooklyn, New York
