In re Zaldivar
| Decision Date | 20 September 2022 |
| Docket Number | 2020-547/A |
| Citation | 2022 NY Slip Op 33210 (U) |
| Parties | Application of Grace Zaldivar and Esther Odorisio for Limited Letters of Administration in the Estate of ANTONIA WINTER, Deceased. |
| Court | New York Surrogate Court |
Unpublished Opinion
This is a contested petition for limited letters of administration in the estate of Antonia Winter (SCPA 702). Petitioners Esther Odorisio and Grace Zaldivar ("Petitioners") decedent's sisters and sole distributees, seek letters in order to investigate and pursue possible claims the estate may have against the estate of decedent's post-deceased companion, Jack Desmond Kramer ("Kramer"). The petition is opposed by Judah Schwartz, Esq. ("Respondent"), the executor of Kramer's estate and the petitioner in a pending proceeding in this court to probate decedent's will dated February 27, 2019. The parties have consented to summary disposition of this petition on the pleadings.
The relevant facts are as follows. Decedent died on December 13 2019, at the age of 90. In the propounded will, decedent made bequests of $50,000 to each of the Petitioners and left her residuary estate to Kramer. Decedent nominated Kramer as executor, and her niece, Andrea Zaldivar ("Andrea"), as successor executor.
In two previous wills, dated July 17, 2008, and July 16, 1999, on file with the court, Petitioners were named as residuary beneficiaries. In the 2008 will, the residuary estate is divided equally among Petitioners and Kramer. In the 19999 will, it is divided equally between the Petitioners, with Kramer named only as a co-fiduciary.
Kramer initiated proceedings to probate the will dated February 27 2019, but he died on May 3, 2020, before completing jurisdiction. Although nominated as successor executor, Andrea declined to proceed with the probate proceeding because she believes the instrument is invalid due to decedent's lack of testamentary capacity. Accordingly, Respondent, who is the fiduciary of Kramer's estate, has amended the probate petition, asking that letters of administration c.t.a. issue to himself. The probate proceeding is in pre-objection discovery, and Petitioners are expected to contest the will's validity.
Prior to decedent's death, Andrea had commenced an Article 81 proceeding in New York Supreme Court seeking appointment of a guardian for decedent's personal needs and property management, alleging that decedent was unable to care for herself and that Kramer, with whom she lived, was unable to properly care for her and was exploiting her financially. Kramer cross-petitioned, opposing the appointment of a guardian. After a hearing, the Article 81 court appointed an independent guardian for decedent's personal and property needs, with specific authority to discover and seek turnover of any property rightfully belonging to her. Decedent died before the guardian could fully investigate the allegations of financial abuse. However, the guardian advised the Article 81 court in her final report that decedent had dementia, had been unable to manage her finances for some time prior to February, 2019, and that although Kramer had hindered the guardian's efforts to identify or marshal her ward's financial assets, she had learned from the limited records available...
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