Matter of Henkell

[*1] Matter of Henkell 2005 NY Slip Op 50040(U) Decided on January 25, 2005 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 25, 2005
Surrogate's Court, Nassau County

In the Matter of the Probate of the Last Will and Testament of MARIE C. HENKELL, Deceased.



335202

John B. Riordan, J.

This is an application for a waiver of compliance with SCPA 2307-a, allowing for the payment of full commissions to the nominated fiduciary who is the attorney-draftsman of the decedent's Will and the petitioner in this proceeding.

The decedent died leaving a Will dated March 28, 1996. In the Will the decedent nominated her sister, Louise R. Dixon, and the attorney-draftsman as co-executors. The decedent's sister has renounced her appointment as co-executor. The residuary estate is bequeathed to various individuals and charities. Article "SIXTH" of the Will provides, in pertinent part, as follows: "I hereby acknowledge that I have been advised that my Co-Executors and Trustees, if any, will be entitled to compensation for acting in those capacities as is provided under statute of the State of New York and I agree and acknowledge that these fiduciaries are entitled to compensation for their efforts and labors in administering my estate or any trusts established therein."

In support of his application, the attorney-draftsman states, by affidavit, that because of the circumstances surrounding the preparation and execution of the Will, he did not contemplate the disclosure provisions of SCPA 2307-a. According to the petitioner, the Will was originally drafted for execution in September, 1994, however, the decedent did not sign her Will until March 28, 1996, which is evidenced by the handwritten change to the date of the Will made by the decedent. The attorney-draftsman argues that since SCPA 2307-a had only been in effect for a short period of time when the Will was actually signed and was not in effect when he prepared the draft, a waiver should be granted. In further support of the relief requested, the attorney-draftsman alleges that the decedent's prior Will dated November 6, 1985 also nominated him as executor. Additionally, he claims that his representation of the decedent was extensive and that she had confidence in him because she "was unmarried, had no issue and did not have any close friends upon who she could rely."

SCPA 2307-a was enacted to reduce potential overreaching by an attorney who drafts a Will in which he or an attorney affiliated with the draftsman is named as executor (Matter of Pacanofsky, 186 Misc 2d 15 [2000]). The statute, which is effective with respect to all Wills executed on or after January 1, 1996 and, irrespective of the date of any Will, to estates of [*2]decedents dying after December 31, 1996, requires an attorney who prepares a Will which nominates himself or an affiliated attorney as executor to disclose certain information to the testator. Specifically, the attorney-draftsman must inform the testator of the following:

(A) subject to limited statutory exceptions, any person, including an attorney, is eligible to serve as an executor;

(B) absent an agreement to the contrary, any person, including an attorney, who serves as an executor is entitled to receive an executor's statutory commission; and

( C) if such attorney or an affiliated attorney renders legal services in connection with the executor's official duties, such attorney or a then affiliated attorney is entitled to receive just and reasonable compensation for such legal services, in addition to the executor's statutory commissions.[FN1]

The statute also requires a signed and witnessed acknowledgment by the testator that such disclosure has, in fact, been made (SCPA 2307-a[2]) . SCPA 2307-a(3) provides model forms of the acknowledgment. Pursuant to SCPA 2307-a(4), a written acknowledgment of disclosure that "conforms" or "substantially conforms" to the model forms shall be deemed compliance with SCPA 2307-a(2).

SCPA 2307-a(9)(b)(ii)(A) and (B) allow the court, in its discretion, to waive compliance with the statute for good cause shown, where the instrument offered for probate was executed prior to January 1, 1996 (Matter of Marcus, NYLJ, June 23, 1999 at 33; Matter of Castelnuovo, NYLJ, June 23, 1999 at 33; Matter of Waldman, 172 Misc 2d 130 [1997] ). The language of the statute is clear that a waiver of compliance may not be granted with respect to a post

January 1,1996 Will. Since the Will offered for probate was executed on March 28, 1996, there is no occasion for the court to grant a waiver of compliance here.

Nevertheless, the court must still determine whether the language of Article "SIXTH" conforms or substantially conforms to the models and shall be deemed compliance under 2307-a(4). In many cases, the courts have been confronted with the issue of whether the acknowledgment may be contained in the Will itself or must be separate from the Will. In Matter of Pacanofsky (186 Misc 2d 15 [2000]), Surrogate Roth concluded that SCPA 2307-a requires the testator's written acknowledgment to be in a separate writing. However, in Matter of Winston (186 Misc 2d 332 [2000]), Surrogate Holzman reached a contrary result. Although stating that the safest course was to have the acknowledgment of disclosure in a separate writing, Surrogate Holzman, nevertheless, found that the language in the Will before the court was sufficient to insure that the disclosure language was not mere boilerplate, but instead was the product of a meaningful discussion regarding commissions. This court in Matter of Bruder (NYLJ, Mar. 15, 2001 at 25, col. 1) concurred with the analysis in Matter of Pacanofsky (186 Misc 2d 15 [2000]) and required the acknowledgment to be in a separate writing. Similarly, other courts followed the view that the acknowledgment required by SCPA 2307-a must be in a writing separate from the Will (Matter of Weygand, 4 Misc 3d 190 [2004]; Matter of McGarry, [*3]NYLJ, Jan. 10, 2002 at 31). The issue was ultimately resolved on November 16, 2004, when SCPA 2307-a(2) was amended to make it clear that the acknowledgment of disclosure must be in a writing separate from the Will (Surrogate's Court Procedure Act 2307 as amended by L2004, Ch. 709). Accordingly, the language in Article "SIXTH" does not constitute the acknowledgment of disclosure required under SCPA 2307-a because it is contained in the Will and not in a separate writing (SCPA 2307-a[2]; Matter of Weygand, 4 Misc 3d 190 [2004]; Matter of McGarry, NYLJ, Jan. 10, 2002 at 31; Matter of Bruder, NYLJ, Mar. 15, 2001 at 25, col. 1; Matter of Pacanofsky, 186 Misc 2d 15 [2000]).

Assuming arguendo that the acknowledgment could be incorporated in the Will, the court notes that the language in Article "SIXTH" of the Will falls far short of "substantial compliance" with the models set forth in SCPA 2307-a and would require a limitation on commissions in any event.

Pursuant to SCPA 2307-a(5) the executor's commissions shall be reduced by one-half the statutory rate for failure to comply with the requirements of SCPA 2307-a(2).

This decision constitutes the order of the court.

Dated: January 25, 2005

JOHN B. RIORDAN

Judge of the

Surrogate's Court Footnotes

Footnote 1:Effective November 16, 2004, SCPA 2307-a(3)(a) and (b) were amended to provide that an acknowledgment of disclosure should also include a statement that the testator was advised that, absent execution of the disclosure statement, an attorney-executor shall be entitled to one-half of the commissions he or she would be entitled to receive.