The Appellate Division of the Second Department has recently denied a motion to immediately suspend Letters Testamentary in the Matter of Mercer (2014 NY Slip Op 05186). SCPA 711 and 719 provide that the Surrogate may suspend or revoke letters where there is proof of a serious breach of fiduciary duty. This involved the improper conversion of tangible property held by the executor. The appellate court opined that:
"[w]hile the Surrogate is clearly granted the exceptional authority to summarily remove executors without the formality of commencing a separate proceeding, the authority to exercise the ultimate sanction summarily is not absolute. The Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding" (Matter of Duke, 87 NY2d at 472-473 [internal citations omitted; emphasis added])."
The court also issues the caveat that the granting of such relief equates to the nullification of the intent of the testator. While the court has the power to suspend an executor without the formality of a hearing, it may yet do so where undisputed evidence pointing to misconduct is offered.