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CAN YOU REMOVE AN EXECUTOR? ESTATE OF DORIS DUKE

26
Mar

By Jason Stern

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As a NY estate lawyer, our firm is one of a select few firms in NY who have successfully removed an executor of an estate. Any NY wills lawyer can tell you that an attorney drafted, supervised and witnessed will is one of the strongest most durable estate documents you can draft to protect the assets of your estate. When you have a valid testamentary instrument drafted by a NY wills lawyer you are creating a very strong presumption of the document’s authenticity and validity that is not afforded self-made wills. In fact the terms of your will drafted by your Queens estate lawyer are presumed to be the most accurate memorialization of your last will and testament and carries with it a strong air of authenticity unless proven otherwise. However, this air of authenticity does not mean that your Queens wills lawyer drafted will cannot be attacked by distributees of the estate. Our firm of NY will contest lawyers have successfully attacked more than our share of attorney drafted wills. However, unless your NY will contest lawyer is highly experienced and knows what to look for, attacking NY estate lawyer supervised wills is an exercise in futility. But that’s not to say it is not attempted. And one ground to attack a Queens estate lawyer supervised will is to object to the appointment of the will’s executor.

When you draft your will you are really doing two things. You are designating who will receive the natural bounty of your NY estate and you are designating a fiduciary, executor, to administer that estate. Each part of your will is no less important than the other. If the fiduciary, executor, of your NY estate is unscrupulous he or she can tie up your estate indefinitely leading to years and years of NY estate litigation or worse. As a Queens estate lawyer I have seen this happen before.

Estate of Doris Duke

Doris Duke was the daughter of a wealthy tobacco farmer, James Buchanan Duke, who amassed a $1.3 billion dollar empire, including but not limited to the NJ estate depicted above. When Doris Duke died in 1993 she left most of her fortune to various charitable organizations including but not limited to Duke University, her family’s namesake. Under her NY will Doris Duke named her butler and long time friend Bernard Lafferty as executor of her estate.

After her death, nearly three years of NY estate litigation ensued in the Duke Estate involving 40 different NY estate lawyers generating over $10 million dollars of legal fees. Even Duke University sued the Duke estate, contesting the $10 million bequest under her will as being “too small”. By 1994, each of the NY estate lawyers brought a petition to have the executor, Doris Duke’s longtime butler removed. Their petition stated several grounds for removal of the executor under NY estate law including but not limited to the comingling of NY estate funds, which is a nice way of suggesting the executor was stealing assets of the Duke estate.

While the NY Surrogate’s Court initially granted the NY estate lawyer’s petition to remove the executor of Doris Duke’s Estate, the NY Court of Appeals would later overturn this decision. Pursuant to SCPA 719 a NY Surrogate may have the authority to remove fiduciaries, executors. However the Court of appeals reasoned that it is perceived to be an abuse of the Court’s discretion to remove an executor designated in a Queens estate lawyer drafted will absent extenuating circumstances. As such the Appellate Court went on to reason that Courts are required to exercise their powers of removing executors of NY estates sparingly and to nullify a testator’s choice of executor only upon a clear showing of serious misconduct that endangers the NY estate.

In the Duke Estate, the Court felt that even if the executor had misappropriated funds of the estate, which was not clearly shown, not every breach of fiduciary duty warrants the removal of an executor. Thus, as a Queens estate lawyer I strongly suggest that my clients think long and hard before determining who the executor of their estate will be. Obviously you want someone capable but by far honesty is the best character trait in an executor of a NY estate. After all, plenty of NY estates have been looted by capable executors appointed in NY attorney drafted wills. The bottom line is, can you remove an executor once they have been appointed? The answer is yes. Is it feasible? The answer is usually no.

If you or a loved one are thinking about drafting a will and would like to speak with a NY estate lawyer feel free to call the Law Offices of Jason W. Stern & Associates at (718) 261-2444 for a free consultation. Our Queens estate lawyers have nearly 45 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.