Linda Hall was the executrix of her mother’s estate. Hall had initially had a 2005 will admitted to probate.

When Hall’s sister, Carol Polak-Reid (“Reid”) filed a complaint alleging that their mother had executed another will in 2011, Hall represented that she had attempted to have the 2011 will admitted, but the surrogate had rejected the 2011 will because it contained “scratch-outs.” The trial court set aside probate of the 2005 will and admitted the 2011 will to probate, although Hall remained the executrix. The trial judge denied Reid’s request for an accounting as premature, and denied Reid’s request to remove Hall as executrix, finding insufficient evidence to support the request.

Reid later filed a motion seeking information regarding the decedent’s property in Englewood, and seeking distribution of personal property, an inventory of the decedent’s assets, counsel fees, and a plenary hearing regarding Hall’s removal as executrix. The trial court awarded Reid counsel fees from the estate and ordered Hall to provide an inventory of assets, but denied Reid’s other requests.

Thereafter, the decedent’s Englewood property was sold.

A trial was conducted, which resulted in the trial judge making the following findings. Prior to her death, the decedent had been living with Hall and paying Hall $1,000/month in rent. The decedent had obtained a loan for $79,000, secured by a mortgage on the Englewood property. The decedent had retained $10,000 of that loan. Contrary to Hall’s denial, the trial judge found Hall had borrowed the remaining $69,000 to renovate her home. The court found that the decedent’s payment of the $922 monthly mortgage was in lieu of her paying rent to Hall. The judge also found that, according to the decedent’s will, Hall was to be responsible for repaying that loan at the time of sale of the Englewood property. The trial judge found that the testimony presented at trial demonstrated that the decedent had intended to have Hall repay that loan.

Although the trial court ordered that the loan balance was to be repaid by Hall, he credited Hall for the $922/month mortgage payments, since they were in lieu of rent. He entered judgment against Hall for the balance of the loan, to be paid to the estate.

The trial judge also ordered that, because there were no funds remaining to be distributed pursuant to the residuary clause, Hall would not be paid an executor’s commission.

On appeal, Hall first claimed that, contrary to the provision of the will, Hall had never received the loan proceeds and never signed any documents obligating herself to repay the mortgage. The Appellate Division rejected these arguments.

The Appellate Division found that the evidence at trial had established that Hall had received the loan proceeds and that the decedent had intended Hall to repay her estate for the loan balance remaining at her death.

Hall’s second argument on appeal was that the trial judge’s refusal to award her an executor’s commission was erroneous, because she had not been found to have engaged in any misconduct. The Appellate Division rejected this argument. It found that Hall’s assertions regarding the loan were not credible, and that,

the record shows that Hall was not seeking to effectuate [the decedent’s] intentions. Rather, Hall was endeavoring to avoid her responsibility for the loan in direct contravention of her mother’s expressed intentions in the will.

The Appellate Division found that, because the matter did not involve a legitimate dispute regarding the terms of the will, and because there were insufficient estate assets to pay residuary bequests and an executor’s commission would reduce amounts received by the other beneficiaries, the judge did not abuse his discretion in refusing an executor’s commission to Hall.

The case is annexed here – Estate of Polak

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