Within the past year, several decisions have been rendered that impact upon the appointment of the attorney as fiduciary, and provide cautionary tales to the attorney-draftsman of instruments in which counsel is named to serve in a fiduciary role.
In re Estate of Wrobleski, NYLJ, 6/4/08, p. 41 (Sur. Ct. Kings County)(Sur. Johnson), the court was confronted with the issue of whether the acknowledgement of disclosure submitted by the nominated attorney-fiduciary was in compliance with the dictates of SCPA 2307-a.
The court noted that while the statements contained in the acknowledgment did not comply with the current requirements of SCPA 2307-a, they did appear to comport with those required by the statute at the time the acknowledgment was executed.
Nevertheless, the court noted that an essential element missing from the acknowledgment was the signature of the witness to the instrument. It was held that the petitioner’s attempts to cure the defect after-death were insufficient to rectify the attorney-fiduciary’s failure to comply with a material requirement of the statute. Specifically, in this regard, the court held that inasmuch as both model statements included in the statute contained a line for the witness’ signature, the signature was a substantial component of the statutory requirement that could not be overlooked. Since the statute failed to provide any remedy for failure to include the signature of the witness to the statement, the court found, under the circumstances, that the petitioner’s commissions should be reduced to one-half.
In re Estate of Deener, 2008 N.Y. Slip Op 28470, N.Y. Sur., Nov. 28, 2008 (Sur. Roth), the issue before the court was whether the disclosure requirements of SCPA 2307-a were applicable to the proponent, an out-of-state attorney named as fiduciary.
The decedent’s Will, which had been prepared by proponent, had been executed in New Jersey and named proponent’s New Jersey firm as the executor. Approximately two years after the execution of her Will, the decedent executed a codicil in which she named the proponent as fiduciary of her estate rather than the law firm.
In petitioning for probate of the decedent’s Will, proponent failed to file a disclosure statement pursuant to SCPA 2307-a with the court. Hence, the question arose as to whether she was subject to the provisions of the statute.
In determining that the statute applied to non-domiciliary attorney-fiduciaries, the court examined its legislative history and noted that it was designed to curb the possible abuses that can be part of the drafting of a will. The court determined that there was nothing in the language of the statute which exempted out-of-state attorney/fiduciaries from the scope of its provisions.
Accordingly, the court admitted the decedent’s Will to probate and limited the commissions of the attorney-fiduciary to one-half the amount that would otherwise be allowable under SCPA 2307.
In re Estate of Moss, NYLJ, 9/24/08, p. 40 (Sur. Ct. New York County)(Sur. Roth), the court had occasion to review the disclosure statements provided by the attorney-draftsmen fiduciaries under two propounded Wills.
The facts of the first case (Moss) revealed that the decedent executed a Will in which she named as executors a friend, who predeceased her, and the attorney-draftsman of the instrument. At the time she executed her Will, the decedent signed a disclosure statement under SCPA 2307-a. Two years later the decedent executed a codicil to her Will which did not involve any fiduciary appointments. At the time the codicil was executed, no disclosure statement was again signed. Accordingly, the issue before the court was whether the disclosure statement obtained when the Will was signed was sufficient to shield the attorney-draftsman from a reduction of commissions pursuant to SCPA 2307-a.
Upon review of the circumstances and the legislative history of the statute, the court concluded that the circumstances surrounding the execution of the said instrument did not require that a further disclosure statement be procured from the testator. Therefore, full statutory commissions were allowed to the named executor.
In the second case before the court (Hess), the court reached a different result. There, the record revealed that the decedent executed a Will in which he named one of his children and a lawyer to serve as executors. He also executed two codicils subsequent to the date of the Will. While the first codicil made no changes in the fiduciary appointments, the second codicil changed the original fiduciary designations by naming as executors the draftsman of the instrument and two of the decedent’s children.
At the time he executed his Will, the decedent executed a disclosure statement which conformed to the requirements of SCPA 2307-a as then in effect, which was witnessed by the attorney-draftsman, who was a partner of the named attorney-fiduciary in the propounded instrument and a named fiduciary in the second codicil.
The question before the court was whether the partner was qualified to serve as a witness to the disclosure statement for purposes of the statute. The court opined that in view of the affiliation between the attorney-executor and the draftsman/partner, the disclosure statement was not “witnessed” in accordance with the purpose of the statute, but rather by a nominee of the attorney-fiduciary. Thus, the court held that he was not independent, and could not serve as a witness to the disclosure statement. The commissions of the attorney-fiduciary were therefore limited to one-half, as provided in the statute.
Author’s Note: For a more in-depth discussion of the foregoing decisions, refer to the New York Law Journal, Trusts and Estates Update, by Ilene Sherwyn Cooper, Esq., dated January 12, 2009, p.3, the New York Law Journal, Trusts and Estates Update, dated November 17, 2008, p. 3 and New York Law Journal, Trusts and Estates Update, by Ilene Sherwyn Cooper, Esq., dated July 14, 2008, p.3.