In Estate of Homelsky, 1/20/2010 NYLJ 27 (col 1), a Nassau County Surrogate’s Court case, the Trustee, an attorney, moved to amend his final accounting to include Trustee commissions claimed to be due him.

The Trustee’s proposed amendment sought only that portion of annual Trustee’s commissions allocable to principal, not the income portion. The amount claimed was in excess of $183,000. A Trust beneficiary objected to the proposed amendment, asserting that in a Receipt and Release Agreement circulated prior to the judicial accounting, the Trustee had stated that he was waiving all Executor and Trustee commissions.  The beneficiary further asserted that the Trustee was not entitled to commissions because he failed to provide the beneficiaries with the annual statement required under SCPA §2309(4).

The Court granted the motion. It found that a statement in the proposed Receipt and Release Agreement waiving commissions clearly indicated that it was made to settle the Account without the need for a judicial accounting proceeding. Since not all of the interested parties signed the agreement, the Trustees had to commence a judicial proceeding, which indeed became contested. The Court stated that “under these circumstances . . . the Trustee should not be held to the terms of the agreement.” As to the argument concerning failure to provide an annual statement, such an annual statement under the statute is to be provided to a person receiving income from the Trust. The Court found that since the Trustee was not seeking the commissions chargeable to income, this argument provided no basis upon which to estop the Trustee from seeking commissions.

The Court decided, but did not pass on the assertion made by Petitioner’s counsel that even if the Trustee were deemed to have waived commission, such a waiver may be withdrawn, citing a number of cases such as Matter of Grace, 61 Misc 2d 51 (Sur Ct, Nassau County 1970); Matter of Grace Candis Parris, 5/17/2005 NYLJ 32 (col 2) (Sur Ct. Kings County).