ESTATE OF CLAUDIA COHEN, Deceased. (2318/A/07) — Executor and decedent's daughter seek dismissal of a petition to compel the executor to account, which was filed by two contingent remaindermen of the trust established under decedent's will, and of a protective order quashing all discovery requests made with regard to the executor's accounting.

The remaindermen cross-move (1) to dismiss the above motions; (2) to compel the executor to submit to examination in accordance with this court's order dated November 21, 2012; and (3) for sanctions against the executor and decedent's daughter.

At the call of the calendar, the court denied the motions and granted the cross-motion, directing the executor to appear at his examination. The remaindermen's request for sanctions was denied without prejudice to renewal.

Background

Decedent died on June 15, 2007. Under her will, she left her residuary estate in trust, together with a power of appointment over the trust remainder, to her sole survivor, her daughter. In the event the daughter defaulted in the exercise of the power, the remaindermen are among the contingent beneficiaries.

Approximately four years after decedent's death, the remaindermen sought to compel the executor to account, alleging the executor had failed to timely fund the testamentary trust. They also provided the court with documentation showing that he had used estate assets to pursue a course of unsuccessful law suits against decedent's family. One of these matters was determined to have been frivolous and sanctionable in New Jersey, where the executor is embroiled in yet more litigation with regard to decedent's estate. (Matter of Claudia L. Cohen v. Robert Cohen and James S. Cohen, 2010 NJ Super. Unpub. LEXIS 2640).

In response, the executor argued that the remaindermen's interest was too remote to confer standing sufficient to compel him to account and that, even if they had standing, such standing was eradicated by decedent's daughter's having executed a will which in effect excluded the remaindermen.

Mindful of the executor's expenditure of estate assets in unsuccessful and frivolous litigation, and the passage of almost four years since decedent's death, the court directed the executor to account by order dated June 15, 2011. Accordingly, the executor filed an interim account on September 8, 2011, but now moves to dismiss the remaindermen's petition to compel the accounting on the ground that there has been a change in circumstances, i.e., the assurance by the daughter that she had executed a will excluding the remaindermen, and that the will will remain in effect until her demise.

Calendar Call

At the calendar call, the court ruled that these motions are not only procedurally defective, in that they seek relief previously denied, and recognized that the so-called change in circumstances are not new in any meaningful sense.

The court also noted that the motions are an unfounded attempt to re-litigate concluded issues. The facts offered by the executor and decedent's daughter as constituting a change in circumstances are not new in any material sense in that the court was aware that the daughter had executed a will at the time the executor was directed to account. With respect to the daughter's "new" assurance that she will keep such a will in effect as long as she lives, the court advised movants that it cannot rule on promises of future actions.

Finally, the court cautioned that its decision to compel the executor to account was based not only on the remaindermen's standing to seek an accounting, but also on the court's own sua sponte concern about the administration of the estate in light of the passage of lime since decedent's death, the fact that the executor had not yet funded the trust, and the executor's expenditures on unsuccessful and sanctioned litigation.

Accordingly, the executor was directed to appear for his deposition forthwith, or risk being held in contempt.

This decision constitutes the order of the court.

January 30, 2013