ESTATE OF TUH KING, Deceased — In these administration proceedings, a daughter of the decedent petitioned for letters of administration and a son of the decedent cross — petitioned for the same relief. The petitioner and cross petitioner each filed objections to the other's application. Essentially each party alleges that the other is "otherwise unfit for the execution of the office," and accordingly, ineligible to serve as the administrator of the estate (SCPA 707 [1] [e]). In the alternative, each party argues that in the event the court concludes neither one of them is ineligible, it should exercise its discretion in favor of his or her application because he or she would make a better administrator (see SCPA 1001 [1] [f] [i]). A bench trial was held to determine the issues raised.

The decedent's alleged wife had filed a petition for letters of administration prior to the petitions sub judice; however, after the petitioning daughter herein filed objections to that petition, alleging, inter alia, that the alleged spouse, who is the petitioning daughter's mother, was never legally married to the decedent and had abandoned the decedent, the alleged spouse withdrew her application. Nonetheless, the parties still insisted upon litigating in this proceeding whether the alleged spouse is the decedent's surviving spouse.

The decedent died on July 25, 2010, and in addition to the alleged spouse, was survived by five children, including the petitioner who at the time of the hearing was classified as a "retired" attorney, and the cross petitioner. The cross petitioner's application is supported by the alleged spouse and one sister. The petitioner's application is supported only by another son. With respect to the alleged spouse, the petitioner alleges that the spouse should be disqualified as a surviving spouse, asserting that the marriage to the decedent was bigamous or, in the alternative, that the spouse abandoned the decedent. The petitioner, the cross petitioner and the petitioner's spouse testified at the hearing.

On the bigamy issue, the cross petitioner introduced a marriage certificate demonstrating that the decedent and the spouse married in Hong Kong on May 25, 1956. The petitioner and the cross petitioner agreed that the decedent was married previously and their oldest brother was a product of that first marriage. Notwithstanding that the petitioner's parents (the decedent and the alleged spouse) appeared to have been married for more than 54 years on the date of the decedent's death, the petitioner essentially took the position that she would not recognize the validity of their marriage until she was presented with proof that the decedent and his first wife were divorced. Although the cross petitioner testified that a copy of the divorce decree from decedent's first marriage was found among the decedent's personal papers, no divorce decree was offered into evidence. On the other hand, the petitioner failed to present any admissible proof to impeach the validity of the May 25, 1956 marriage certificate. With regard to disqualification of the spouse based on abandonment during the more than 54-year marriage, the only proof adduced was that the decedent and the spouse had frequent and sometimes violent arguments. There was no proof that either the decedent or the spouse ever left the marital abode.

The petitioner also alleged abandonment based on the fact that the spouse rarely visited the decedent after he suffered a paralyzing stroke in 2007. The evidence established that after suffering a stroke in 2007, the decedent was paralyzed and unable to speak until he died on July 25, 2010. No party definitively established how many times the spouse visited the decedent in the hospital or the hospice. When questioned about how many times the spouse visited, the cross petitioner, although somewhat evasive, stated he was aware that the spouse visited the decedent in the hospital but conceded that the visits were limited to somewhere between three and five times, stating the spouse was too upset to visit more often.

An affidavit signed by the spouse was admitted in evidence on consent of the parties in which she admits that after the decedent was transferred from the hospital to a hospice and it was then decided that he should be transferred back to a hospital, she became very agitated in the presence of hospice employees and family members. In her agitated state, she placed a pillow over the decedent's face to show her displeasure with everyone and the treatment the decedent was receiving. The petitioner and cross petitioner appeared to agree that, on that occasion, the spouse was taken by ambulance to Jacobi Hospital where she stayed for a short period of time due to her mental state. The cross petitioner testified that there was no similar subsequent incident, and the spouse did not show signs of mental instability once released from the hospital.

An original certificate of a marriage in New York, generally, is prima facie evidence of the marriage (see CPLR 4526). Additionally, "[i]t is well established under New York law that a presumption exists, absent contrary evidence, that a second marriage is valid, and the burden of proving its invalidity is placed upon those who assert it" (Matter of Wachter, NYLJ, March 16, 1994, at 23, col 4; see also Matter of Gomez v. Windows on the World, 23 AD3d 967 [2005]; Matter of Lymon, 151 AD2d 248 [1989]). Moreover, "[t]his presumption may only be negated by disproving every reasonable possibility which would vitiate the marriage relationship" (Matter of Wachter, NYLJ, March 16, 1994, at 23), with the burden being even higher where, as here, the party challenging the validity of the marriage is a stranger to the marital relationship (see Matter of Esmond v. Lyons Bar & Grill, 26 AD2d 884 [1966]; see also Matter of Seidel v. Crown Industries, 132 AD2d 729 [1987]). Here, no proof was presented to overcome that presumption.

The petitioner's allegation that the spouse abandoned the decedent based on her actions toward the decedent during the marriage and her limited contact with him after he suffered a stroke fares no better. A spouse is disqualified from inheriting from the deceased spouse where the survivor departed from the marital abode without justification and the abandonment continued until the time of the deceased spouse's death (see EPTL 5-1.2 [a] [5]; see also Matter of Riefberg, 58 NY2d 134, 138 [1983]; Matter of Arrathoon, 49 AD3d 325, [2008]; Matter of McAfee, 28 Misc 3d 1225 [A], 2010 NY Slip Op 51494 [U] [2010]). Here, while it appears from the proof adduced that this certainly was not one of the more blissful marriages; nonetheless, not a single element of abandonment was established. Accordingly, the petitioner's allegation that the spouse is disqualified has not been established.

Apparently, the source of friction between the petitioner and the cross petitioner arose when the decedent suffered the stroke. At that time there was a bank account held in the names of both the decedent and the petitioner. Shortly after the decedent's stroke, the spouse requested that the petitioner turn over the proceeds of that account to her. The petitioner declined to do so, and testified that she did not comply with that request only because she was shocked that the request was made so soon after the decedent's stroke. In any event, the net result was that the petitioner and cross petitioner engaged in a bitter Mental Hygiene Law article 81 guardianship proceeding relating to the decedent in Supreme Court, Queens County and, ultimately, to the dismay of the petitioner, the cross petitioner was appointed the decedent's article 81 guardian.

The cross petitioner testified that he wanted all of the family members to be involved in the decedent's care, and he was delighted when any of them visited the decedent; however, the actions of the cross petitioner belied his testimony. On one occasion when the petitioner was not satisfied with the treatment the decedent was receiving and was upset that the cross petitioner prevented her from participating in any medical decisions related to that care, the cross petitioner managed to goad the petitioner to such a degree that the police were called to remove her from the hospital. The cross petitioner also testified that on one occasion the petitioner ripped things off the wall at the nursing home, an allegation which the petitioner did not deny; however, the cross petitioner did not contradict the petitioner's testimony that she sent a card to the decedent which was removed from the wall.

The petitioner and her husband testified that on another occasion the cross petitioner was called to ask if they could visit the decedent at the family home and he consented to their request; however, when they arrived and knocked on the door, they were denied entry. At first the cross petitioner testified that he had nothing to do with the petitioner and her husband being barred entry as he was not in the home at that time. Ultimately, he conceded that he might have told his brother to do so, because they were knocking on the door loudly and he was afraid, and that under the circumstances, it was appropriate to call the police. In any event, the police were called either by the cross petitioner or by his brother, at the cross petitioner's direction. The cross petitioner's statement that he was glad to have the petitioner and her spouse come for a visit provided they behaved properly, was inconsistent with his later response that they were not allowed to visit because he was informed that during a prior visit the petitioner rifled through the cross petitioner's private papers without his permission.

The cross petitioner also admitted that he mailed the petitioner family pictures in which she appeared, but with the image of her mother cut from the photograph. At first the cross petitioner appeared to be testifying that this was done at their mother's instruction but, ultimately, he clarified that their mother said only that she didn't want the pictures any longer and he thought his sister might like to have the pictures. He testified that he knew, without discussing it with their mother, that she would not want the petitioner to have any pictures of her, so he cut out the image of their mother from the pictures before sending them in the mail to the petitioner. Needless to say, the petitioner testified she was very hurt and disturbed upon receiving the pictures in this condition.

The petitioner's behavior toward the cross petitioner did not differ considerably. The petitioner essentially conceded that whenever she discussed the care of the decedent with the cross petitioner, she ultimately disagreed with his plan and became emotionally distraught. She did not deny damaging a door at a facility where the decedent was residing with a cart and tearing down everything on the walls in the decedent's room. Although her objections to the cross petitioner's accounting proceeding in the Mental Hygiene Law article 81 guardianship proceeding were dismissed and that proceeding was referred to the guardianship clerk as an uncontested accounting, the petitioner attempted to re-litigate repeatedly her contention that the cross petitioner improperly administered the decedent's property during the course of the guardianship proceeding, and if permitted, would have litigated the same issues at this hearing. Apparently, the petitioner could not accept that the cross petitioner stopped paying rent of $750 to their parents after the cross petitioner retired from his job, continued to reside with his parents and assumed primary responsibility for the care of the decedent after the stroke. The petitioner also testified about the cross petitioner's alleged misconduct with respect to property located in Shanghai, China, that the cross petitioner failed to list in his cross petition. According to the petitioner, after the decedent's death the cross petitioner made two trips to China, without advising any other family members, to dispose of an apartment in Shanghai. She stated this upset her because the decedent always told her that the property was to be a family refuge; however, the decedent did not execute any instrument directing that the apartment be held for that or any other purpose.

In summary, ever since the petitioner refused to surrender the proceeds of an account, which apparently she now concedes was a convenience account established with the decedent's funds to which her name was added so that she could expend funds for the decedent's benefit, and the petitioner and cross petitioner crossed swords in the article 81 guardianship proceeding, each of them became more interested in lashing out at the other than resolving any issue that caused the dispute. This antagonism has gone to such an extent leading both to act in ever increasing belligerent ways leading to the petitioner litigating the validity of her own parents' marriage without any proof to support her allegations and the cross petitioner telling the petitioner she could come to visit with the decedent and then calling the police when the petitioner accepted the invitation.

Although disharmony between a proposed fiduciary and beneficiaries of an estate alone is not a ground for disqualification, a fiduciary may be disqualified on the ground of being otherwise unfit for office (see SCPA 707[1][e]) where the disharmony rises to the level that it jeopardizes the interest of the beneficiaries and the proper administration of the estate (see Matter of Beharrie, 84 AD3d 1227, 1229 [2011]; Matter of Palma, 40 AD3d 1157 [2007] [noting that hostility or antagonism which threatens to interfere with proper administration of the estate may be sufficient to disqualify an otherwise eligible distributee]; Matter of Sadowski, 21 AD3d 1034 [2005]; Matter of Thomson, 232 AD2d 219 [1996]; Matter of Rad, 162 Misc2d 229 [1994] [appointing Public Administrator fiduciary of estate upon finding that hostility exhibited by two siblings, who were both petitioning to be appointed, disqualified them]; see also Matter of Jurzykowski, 36 AD2d 488 [1971], affd 30 NY2d 510 [1972]).

Here, the totality of the testimony and the proof adduced as to the long standing palpable hostility exhibited by each toward the other, convinces the court that it is almost inevitable if either one of them became the fiduciary that fiduciary would not treat the other fairly resulting in the other litigating most of the actions of that fiduciary. Such conduct portends an estate dissipated by litigation. Accordingly, the court finds that the petitioner and the cross petitioner are both disqualified based on their extreme and long standing hostility toward each other (see SCPA 707 [1] [e]; see also Matter of Beharrie, 84 AD3d at 1227; Matter of Palma, 40 AD3d at 1157; Matter of Rad, 162 Misc2d at 229). The fact that the petitioner stated that she would administer the estate without charging legal fees is irrelevant in light of the degree of existing animosity between the petitioner and cross petitioner.

The court denies the petitioner's post-trial motion for judgment pursuant to CPLR 4410 based on allegedly newly discovered evidence as that evidence is not newly discovered and does not, in any event, impact on the court's determination finding that both the petitioner and cross petitioner are disqualified. The court also notes that while it determined that the spouse is not "disqualified" as a distributee of this estate, given the proof adduced with respect to the spouse, it is certainly questionable whether the spouse would be eligible to serve as administrator of this estate.

Accordingly, this decision constitutes the decree of the court sustaining the objections to both the petition and the cross petition, and denying both applications. If no other eligible distributee petitions to be appointed administrator within 45 days of the date of this decision and decree, to further the best interests of all of the distributees, the Public Administrator shall be appointed to serve as the fiduciary upon duly qualifying according to law (see Matter of Rad, 162 Misc2d at 229).

The Chief Clerk shall mail a copy of this decision and decree to the pro se petitioner, counsel for the cross petitioner and the Public Administrator.

Proceed accordingly.

December 31, 2012