Matter of Wagoner

Matter of Wagoner 2005 NY Slip Op 25054 [7 Misc 3d 445] January 10, 2005 Doyle, J. Surrogate's Court, Albany County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 11, 2005

[*1] In the Matter of the Estate of Sidney J. Wagoner, Jr., Deceased.

Surrogate's Court, Albany County, January 10, 2005

APPEARANCES OF COUNSEL

Sarah M. Biscone, Albany, for executor.

OPINION OF THE COURT

Cathryn M. Doyle, S.

Decedent died on September 18, 2003, leaving a will dated May 2, 2003, designating his attorney's paralegal, Darleen L. Domanico, as executor of his estate. At the time the will was executed, decedent executed a SCPA 2307-a disclosure statement witnessed by his attorney only. SCPA 2307-a was enacted to reduce the possibility that a choice of executor may be induced by the attorney for his or her own benefit, rather than the client's. The statute provides that when an attorney drafts a will in which he or she "or a then affiliated attorney" is designated as an executor, the attorney must disclose that any person may serve as executor, executors are entitled to statutory commissions, and the attorney is also entitled to a legal fee if he or she renders legal services to the estate (SCPA 2307-a [1]). The statute requires that the disclosures be set forth in a writing executed by the testator "in the presence of at least one witness other than the executor-designee" (SCPA 2307-a [2]). The penalty for noncompliance with this requirement is a 50% reduction in the statutory commissions to which such an attorney as executor would otherwise be entitled (see SCPA 2307-a [5]).

The court's concern is that it may appear as if the attorney is attempting to circumvent the requirements of SCPA 2307-a by designating his paralegal, rather than himself, as executor of decedent's estate. In an affidavit submitted to the court, Domanico states that she was not a close friend of the decedent and that she became acquainted with him through her employment with the attorney. Although not an attorney herself, the court finds that Domanico's relationship with the attorney, combined with her lack of relationship with the decedent, was such that a SCPA 2307-a disclosure statement was required. Insofar as the disclosure statement presented here was not signed in the presence of "one witness other than the executor-designee," the statement is null and void (SCPA 2307-a [2]). The disclosure statement presented here was witnessed by the attorney only. Accordingly, the commissions of the executor must be limited to one half an executor's commission pursuant to the statute (see SCPA 2307-a [5]; Matter of McDonnell, 265 AD2d 557, 558 [1999]).