Appointment of Guardian Ad Litem — Trusts and Estates Update

February 01, 2003

Before the Court was an omnibus proceeding commenced by the decedent’s surviving spouse in her individual capacity as well as guardian of the property of her infant child. The infant was a person interested in the estate as an afterborn child, possibly entitled to inherit pursuant to EPTL 5-3.2.

The Court determined that it was mandated to appoint a guardian ad litem. The issue became whether this appointment barred the appearance of the guardian of the property as a party. In a prior decision, the Court rejected such a challenge, holding that the appointment of a guardian ad litem in no way usurps the rights of a legally appointed guardian to appear by counsel on behalf of an infant and to take all legal actions deemed appropriate for the infant’s benefit. Although the Court noted that some commentators have suggested that under certain circumstances the guardian ad litem may be directed to appear in lieu of the guardian of the property, others have determined that concurrent appearances by a guardian ad litem and guardian of the property are not necessarily redundant. Generally, when a guardian ad litem is appointed in such situations is designed as a safety net for the ward in the proceeding.

As such, in the context of the pending proceeding, the Court held that while the guardian of the property could appear as a co-petitioner on her own behalf and on behalf of her child, an independent guardian ad litem would fully protect the interests of the ward.

In re Estate of Seviroli, New York Law Journal, 12/17/02, (Surrogate’s Court, Nassau County)

Examination before Trial of Corporate Witness
In an action for breach of contract and for an account stated, the defendant moved to compel plaintiff, corporation, to produce a named employee for an examination before trial. The Court denied the motion, holding that a party corporation has the right to determine which of its representatives will appear for an examination before trial. If the defendant desires to depose other representatives, he/she must show that the representatives who have already been deposed had insufficient knowledge, or were otherwise inadequate, and there is a likelihood that the person he/she wants to depose possesses information which is material and necessary.

The Court determined that the defendant failed to make a sufficient showing in this regard, and thus denied the requested examination. Goldstein, Rubinton, Goldstein & DiFazio, New York Law Journal, 12/18/02 (District Court, Suffolk County)

Construction of Will In a construction proceeding, the Court was asked to determine whether a pre-residuary bequest under the decedent’s will of “cash on deposit in any accounts” was intended to dispose of the funds in the decedent’s mutual fund account. The account constituted the decedent’s sole probate asset at death.

The executrix of the estate took the position that the funds in the mutual fund account could not be utilized in order to satisfy the bequest, and that as such it abated. The respondent and the guardian ad litem argued that the account was the equivalent of cash and therefore should be distributed to the pre-residuary legatees.

The Court noted that historically “cash” has meant ready money, or money available at command, subject to free disposal. The term “cash” has therefore been held to include money in a bank account that may be drawn on demand, and generally does not include stocks, bonds or mutual funds.

This being the case, the Court found that the words “cash” or “cash on deposit” as contained in the decedent’s will were not intended to include mutual funds, but instead, its ordinary meaning of coins, bills, savings and checking accounts or so-called “demand deposits.” The Court rejected respondent’s argument that the mutual fund shares were “cash” because they could readily be converted into cash by a simple instruction to the broker. Additionally, the Court found unconvincing respondent’s argument that because the decedent had little or no cash at death that he intended the pre-residuary disposition to include his mutual fund account.

In re Estate of Poppe, New York Law Journal, January 2, 2003 (Surrogate’s Court, Nassau County)
Validity of Antenuptial Agreement Determined In a contested proceeding for letters of administration, the issue before the Court was whether the respondent, the decedent’s surviving spouse, was precluded from being appointed the administrator of his estate by virtue of the terms of an antenuptial agreement.

The antenuptial agreement provided that if one of he parties should die, the survivor had no interest in the other’s estate by way of inheritance, succession, family allowance or homestead. The agreement further provided that neither party made any representations as to the value of his or her real or personal property, and that the wife agreed not to make a claim against the decedent’s estate after his death.

The issue was whether the antenuptial agreement extinguished the interest of the decedent’s surviving spouse in his estate.

The factual circumstances surrounding the execution of the agreement revealed that the respondent was a native of the Philippines, and that although English was not her native language, she had sufficient command to pass her professional examinations in English. She testified that three days prior to her marriage to the decedent, he took her to an attorney’s office and asked her to sign the antenuptial agreement, which she saw for the first time. The agreement did not include a statement of assets and respondent was not represented by separate counsel. The meeting at counsel’s office lasted five or ten minutes. Respondent further testified that counsel had informed her that the agreement was valid for only two years.

The Court found that respondent’s lack of independent counsel, the absence of any opportunity for her to consider the terms of the agreement prior to its execution, the brevity of the meeting to review the agreement and execute it, the conversation which took place between respondent and decedent’s attorney at such time, and the absence of any disclosure regarding decedent’s assets demonstrated a level of inequality in the negotiation of the agreement which shifted the burden of proof to the petitioner to show the absence of fraud and undue influence.

The Court determined that petitioner failed to sustain this burden, introducing no facts to establish that respondent had knowingly waived her rights in the decedent’s estate. The Court held that the mere fact that respondent had a college education and a command of the English language was insufficient.

In re Estate of Holtzman, New York Law Journal, 12/20/02 (Surrogate’s Court, New York County)

Editor’s Note: The author is counsel to the firm of Farrell Fritz, P.C., where she concentrates in the field of trusts and estates. She is a member of the Board of Directors of the Suffolk County Bar Association, and an Officer of the Suffolk Academy of Law. In addition, she is an adjunct professor of law at Touro College, Jacob D. Fuchsberg Law Center.

View the PDF