Revocation of Letters — Trusts and Estates Update

March 01, 2003

The decedent executed a Last Will and Testament, dated June 5, 2000, naming five executors, her brother and her sister, her stepson, and two attorney-fiduciaries, one of whom was the attorney-draftsman, and the other, who was the attorney-draftsman’s partner. According to memoranda to the file prepared by the attorney-draftsman, the decedent insisted that there be five executors of her estate, and that their compensation not be reduced. After decedent executed her Will, a letter was sent by the draftsman’s law firm to her, enclosing several copies of the Will, describing the Will’s contents, and in a footnote, calculating the total executor’s commissions, and the amount payable to each executor.

After the death of the decedent, a one sentence document was found amongst her personal effects. The document, which was signed by the decedent and witnessed by her personal secretary, stated that the decedent removed her stepson from any position whatsoever with respect to her estate, and specifically as the executor under her Will, dated June 5, 2000. Although the document was known to all the executors at the time the Will was offered for probate, it was not implemented, presumably because it had not been executed in accordance with the statutory formalities. Thereafter, all five executors petitioned for probate of the Will.

Approximately one year later, the decedent’s brother and sister petitioned, inter alia, for removal of the attorney-draftsman and the decedent’s stepson as executors of the estate, and for denial of their commissions. The petitioners alleged that both executors had committed fraud upon the decedent, in that the attorney-draftsman led the decedent to believe that she could remove her stepson as a fiduciary of her estate simply by signing the one sentence document with only one instead of two witnesses, although he knew that one witness would be insufficient. Petitioners further alleged that the attorney-draftsman committed overreaching and abused his fiduciary relationship with the decedent in being appointed one of her executors, and that he failed to fully inform the decedent of the consequences of his appointment before the execution of the Will. The petitioners assertions were predicated, in part, upon an affidavit supplied by the decedent’s personal secretary.

The attorney-draftsman and stepson moved to dismiss the petition on the grounds that it failed to state a cause of action and judicial estoppel. The decedent’s stepson additionally claimed that the one sentence document could not be utilized to remove him inasmuch as it was not a Will, and that any fraud involved in its execution could not be imputed to him.

The Court found that the statute setting forth the grounds for revocation of letters explicitly contemplates that objections not raised at probate can be raised post-probate. The Court reasoned that allowing objections beyond probate to a fiduciary’s appointment preserves the court’s continuing role in ensuring the orderly administration of decedent’s estates and thereby affords additional protection to the various beneficiaries and creditors of the estate. The Court found, however, that a party cannot always raise objections post-probate, particularly where would-be objectants have investigated possible objections, and concluded that none should be filed. Under such circumstances, the party can be estopped from seeking removal. Nevertheless, in the context of attorney-draftspersons nominated as executors, courts are reluctant to apply judicial estoppel unless a party was represented by separate counsel, actively investigated the nomination of the draftsperson as executor and then concluded that no objections should be filed.

In this context, the Court determined that the fact that the petitioners signed the petition for probate and thus attested to the validity of the Will did not make out an estoppel, particularly since petitioners did not actively advocate the propriety of the nomination of their co-fiduciaries, and did not state that they would forego objections to their fitness. “Neither the statutes dealing with objections to probate or removal of fiduciaries nor the case law suggests such a rule. To the contrary, the cases support the proposition that inquiry into a person’s overreaching in being named executor can occur at any time, even during the executor’s account…”

Additionally, the Court found that the affidavit of the decedent’s personal secretary regarding the circumstances surrounding the execution of the one page document was sufficient to survive the attorney-draftsman’s motion to dismiss petitioners’ claims regarding his unfitness to serve.

As to the petitioners’ claims against the decedent’s stepson, the Court found that no cause of action was stated for fraud or conspiracy to defraud the decedent regarding the one page document.

In re Estate of Berkman, New York Law Journal, January 24, 2003, p. 19 (Surrogate’s Court, New York County)

Appointment of Administrator for Infant’s Estate
Upon application of the public administrator, the Court appointed an administrator for the estate of an infant who lived 13 hours after delivery by emergency caesarian section. The infant’s mother died after being struck by a police officer’s car that ran a red light.

The record revealed that the grand jury had heard sufficient evidence to conclude that the infant was a person capable of being a homicide victim. In view thereof, the Court found that it could not be said that the infant was incapable of experiencing pain and suffering. The Court ruled that an action for wrongful death could be brought on behalf of an infant that is born alive, but dies shortly after birth.

In re Estate of Herrera, New York Law Journal, January 14, 2003, p. 21 (Surrogate’s Court, Kings County)

Construction of Will
In a construction proceeding, the Court was asked to construe and reform the decedent’s will such that Paragraph 6 thereof qualified as a charitable remainder unitrust. The Court found that a careful reading of the will lead to the inescapable conclusion that the decedent intended to create the charitable trust. Hence, the proposed construction was granted by the Court.

In re Estate of Engum, New York Law Journal, January 13, 2003, p.23 (Surrogate’s Court, Richmond County)

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

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