In re Estate of Mullen
| Decision Date | 11 December 2012 |
| Docket Number | No. 2010–2983/A.,2010–2983/A. |
| Parties | ESTATE OF Frances MULLEN, Deceased. |
| Court | New York Surrogate Court |
OPINION TEXT STARTS HERE
Stephen B. Kaufman, Esq., for Patrick Mullen, petitioner.
Sandra M. Prowley & Associates, LLC (Sandra M. Prowley, Esq., of counsel) for William Mullen, cross-petitioner.
Howard R. Vargas, Esq., for Michael Mullen, son.
In this probate proceeding, the decedent's son Patrick petitions for his appointment as the sole preliminary executor. The decedent's son William opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent's only other distributee, her son Michael, who is disinherited under the propounded instrument, supports Patrick's application.
It appears from papers filed in this proceeding that the battle between the decedent's sons commenced prior to her death. In a petition verified in March of 2010, Patrick and Michael sought to be appointed as the guardians of the decedent's person and property pursuant to article 81 of the Mental Hygiene Law. At that time, the decedent was living in her Bronx home with William who was handling her affairs pursuant to a power of attorney. Due to the decedent's death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.
After the decedent's death, the will was not produced until Patrick commenced a proceeding against William to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter Patrick and William filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, Patrick and William stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days ( see Matter of Mullen, NYLJ, Apr. 27, 2011, at 27, col 5). During that 90–day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.
The propounded instrument provides in pertinent part that the residuary estate is divided equally between William and Patrick, William is to be the executor, and Patrick the successor executor. In support of his application to be appointed as the sole preliminary executor, notwithstanding that he is nominated only as the successor executor, Patrick contends that William is ineligible to be appointed as a fiduciary because William was convicted of felonies in Florida in 1984 ( seeSCPA 707[1][d] ) and because William is dishonest as demonstrated by his misuse of the power of attorney that he obtained from the decedent ( seeSCPA 707[1][e] ). Specifically, Patrick asserts that: (1) William used the power of attorney to purchase a boat for his son; (2) otherwise, William improperly used the decedent's funds; and, (3) William will neither cooperate in the sale of the decedent's home in the Bronx where William is residing rent free, nor in the sale of a parcel of realty in Florida where William's son resides.
William counters that he is in favor of selling all of the parcels of realty and alleges that Patrick previously abused drugs and alcohol and presently attends meetings for these problems. William also asserts that Patrick went through a bankruptcy proceeding. William notes that although the decedent was competent when she appointed him as her attorney-in-fact, he needed the power to prevent Michael from continuing to steal money from the decedent. In support of his cross petition to be appointed as the sole preliminary executor, William notes that the will nominates him as the sole executor, and as he entered a plea of nolo contendre to the Florida charges, he was never convicted of a felony which would render him ineligible to serve as a fiduciary.
In his effort to disqualify William, Patrick submits a certified copy of William's Florida arrest record from the Florida Department of Law Enforcement indicating William was arrested on August 11, 1984 and charged with three felony level offenses: carrying concealed weapons (firearm); carrying concealed weapons (knife); and possession of marijuana. Although the arrest record indicates “DISP–CONVICTED,” presumably establishing a felony conviction, this official record also bears the following notation:
Charges and dispositions as coded herein reflect standardized uniform offense and disposition classifications for computerized criminal history records. More detailed and specific information may be available from contributors. The department does not warrant that these records are comprehensive or accurate, only that this record contains all information on the subject that the department has received and is presently authorized by law to disseminate.
Patrick also submits a certified copy of the handwritten clerk entry of the Broward County Circuit/County Court dated November 26, 1984 pertaining to William's arrest and conviction. Under the area captioned “Charge” is the following handwritten notation: “CCF II CCW and III Possession of Canabis (M).” As for adjudication, the record indicates: “Withheld I and III guilty (M).” Further under the section marked “OTHER”, is the notation “II Nollo Prosequi.” As to charges I and III the plea was “nolo.” The sentence for Charge I was two years probation, a psychological examination and a $250 donation to a charity. The sentence for Charge III was a $150 fine plus 5% surcharge. The parties dispute the meaning and interpretation of the two records. With respect to the alternative basis to disqualify William on the ground of dishonesty, Patrick submits the decedent's Chase checking account monthly statements and canceled checks covering the period July, 2008 through June, 2009, evidencing numerous automatic teller machine cash withdrawals and checks payable to William and William's son in Florida for personal items.
William opposes Patrick's application arguing that his nolo contendre plea does not constitute a conviction as the plea results in adjudication being withheld, and therefore, he cannot be deemed a “convicted felon.” In response to the alternative ground for disqualification, William does not dispute that he made the withdrawals with the power of attorney; rather, he proffers as justification that he “saved his mother from financial ruin by Michael,” as Michael allegedly defrauded the decedent by forging checks and incurred substantial debts by utilizing credit cards issued to her. He also asserts that he purchased the boat at the decedent's behest because she was planning to move to Florida and she viewed the boat as a vehicle to escape the heat. In support of his cross petition for preliminary letters, William notes that he is the sole executor under the propounded instrument and he states that he is in favor of selling all of the decedent's realty at the right price, including the parcel in the Bronx where he resides and the parcel in Florida where his son resides.
Generally, testators' solemn selections as to who should be trusted with administering their estates should be nullified only when statutory grounds for disqualification are clearly established ( see Matter of Duke, 87 N.Y.2d 465, 473 [1996];Matter of Leland, 219 N.Y. 387 [1916];Matter of Gottlieb, 75 AD3d 99 [2010],lv denied16 NY3d 706 [2011];Matter of Foss, 282 App.Div. 509 [1953] ). The sole grounds for disqualifcation are enumerated in SCPA 707 and 711 () Furthermore, the burden of proof falls upon the party alleging the disqualification ( see id; see also Matter of Krom, 86 A.D.2d 689 [1982],appeal dismissed56 N.Y.2d 807 [1982] ). A determination of ineligibility under SCPA 707(1)(d) requires that the proposed fiduciary be convicted of a crime that constitutes a felony under New York law, and accordingly, a felony conviction in another jurisdiction may not be the basis for disqualification of a fiduciary in New York if the acts resulting in the conviction are not a felony under New York law ( see Matter of Murphy, 136 Misc.2d 618 [1987];Matter of Caperonis, 95 Misc.2d 690 [1978];Matter of Cohen, 164 Misc. 98 [1938],affd254 App.Div. 571 [1938],affd278 N.Y. 584 [1938] ). In New York, a “felony” is defined as “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00[5] ).
A “nolo prosequi” or “nolo contendre” plea is a common law plea which has been abolished in New York, but nonetheless, in criminal cases, the plea will be deemed a criminal conviction by New York courts ( see People v. Daiboch, 265 N.Y. 125 [1934];Scranton Volunteer Fire Co. v. Ball, 37 A.D.2d 757 [1971],affd30 N.Y.2d 589 [1972],reh denied30 N.Y.2d 880 [1972];Kasckarow v. Bd. Of Examiners, 33 Misc.3d 1028 [201...
To continue reading
Request your trial