IN RE: the Estate of Swithin McWilliams (2026)

Pursuant to a decision dated February 25, 2026, a hearing pursuant to Surrogate Court Procedure Act § 707 was held on April 14, 2026 regarding the Objections filed by John McWilliams dated October 31, 2025.¹

Eligibility to receive letters is governed by SCPA § 707,

Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

1. Persons ineligible ( . . . )

(d) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

Examples of persons deemed ineligible to serve as fiduciary have included, inter alia: a person adjudicated incompetent to manage their own affairs (In re Healy's Will, 255 A.D. 361, 8 N.Y.S.2d 394 [4 Dept. 1938]); a person who was a non-domiciliary alien (Matter of Alan S.M.C., 160 AD3d 721, 75 N.Y.S.3d 211 [2 Dept. 2018]); and a person who committed a felony, was pardoned, was indebted to the estate and had exercised undue influence over decedent causing the transfer of three pieces of property (Matter of Pullman, 89 AD2d 608, 452 N.Y.S.2d 456 [2 Dept. 1982]).

In this Administration petition, John McWilliams ("Objectant") objects to the appointment of his brother, Robert McWilliams, ("Petitioner") as Administrator. Objectant is one of six children of the decedent, and the only child who has not waived to the appointment of Petitioner. Objections were filed on October 31, 2025, and the allegations are focused on a piece of real property located at 653 Elbe Avenue, Staten Island, New York, which is not a part of this estate. Nonetheless, with no motion pursuant to CPLR 3212 before the court, a discovery schedule and hearing was ordered.

At the hearing, Objectant did not present any admissible evidence regarding the fitness of the Petitioner to serve as Administrator. Petitioner was the only witness who testified and was cross-examined by Objectant. The focus of the cross-examination was the transfer of 653 Elbe Avenue, during the lifetime of decedent Swithin McWilliams, which Objectant alleges was bought with his childhood earnings as an actor. Such alleged amounts were earned during the period of 1970 to 1979 and the purchase of 653 Elbe Avenue occurred at that time. None of these actions were not attributable to the Petitioner. Furthermore, the period of time at issue is outside of any recognizable statute of limitations and not relevant to the fitness of the Petitioner.

Therefore, it is hereby,

ORDERED, that the Objections filed October 31, 2025 are dismissed; and it is further,

ORDERED, that the court hereby fixes the amount of the Administrator's Bond at $17,500.00; and it is further,

ORDERED, Letters of Administration shall issue to Robert McWilliams upon the filing and approval by this court of a bond in the amount of $17,500.00, representing the share of Objectant.

This constitutes the decision and order of the court.

Dated: August 10, 2026

MATTHEW J. TITONE, Surrogate

FOOTNOTES

1.   The court waited a reasonable amount of time for a transcript to be ordered, yet no transcript of the hearing was ordered. The court rendered its decision based upon the FTR recording, and a review of all of the papers filed with the court. No items were admitted into evidence during the hearing.

Matthew J. Titone, S.