Matter of Bronner

[*1] Matter of Bronner 2005 NY Slip Op 50705(U) Decided on May 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2005
Surrogate's Court, Nassau County

In the Matter of the Probate Proceeding, Will of GLORIA ROCHE BRONNER, Deceased.



318627

John B. Riordan, J.

In this contested probate proceeding, objectant William R. Bronner has moved to compel disclosure by a non-party witness, Edward A. McCoyd, Esq. Movant seeks an order directing Mr. McCoyd to answer certain questions as to which objections have been raised by the proponent Deirdre Butterfield, the preliminary executrix of the decedent's estate.

The decedent, Gloria R. Bronner, died on November 13, 2002 survived by her children, William R. Bronner (the objectant) and Deirdre Butterfield (the proponent). The genesis of this litigation arises from a dispute between the parties concerning the ownership of a certain painting. The painting by Thomas Moran was placed in the daughter's possession by the decedent on December 2, 2001. The ownership of that painting provides the backdrop of the parties' dispute, the decedent's son asserting that the painting was given to both him and his sister while the decedent's daughter asserts that the painting was a gift solely to her. In January 2002, the decedent's son arranged for a consultation between decedent and Mr. McCoyd concerning the latter's possible retention as attorney. The consultation was to have dealt not only with issues related to the painting but also to decedent's general estate plan. The consultation took place by telephone on January 8, 2002; however, Mr. McCoyd was not retained by the decedent. On that same date, objectant commenced an action against his sister alleging that the painting was the subject of a joint gift and that his sister misappropriated his half-interest in the painting. Shortly thereafter, decedent retained Edwin F. Black, Esq. and made various changes to her testamentary plan, ultimately disinheriting her son. Objectant now seeks to have the contents of the January 8, 2002 McCoyd consultation disclosed as well as certain documents in Mr. McCoyd's possession to which the proponent asserts the attorney-client privilege.

The following relevant evidence was submitted in connection with this application.

Edward A. McCoyd, an attorney with extensive trusts and estates experience, testified that on January 8, 2002, William R. Bronner had arranged for him to have a consultation with the decedent concerning a dispute between the objectant and his sister over ownership of the painting and decedent's testamentary planning. Shortly after 5:00 p.m. on that date, decedent telephoned Mr. McCoyd and held a conversation with him for approximately a half-hour. Mr. McCoyd testified that the conversation consisted of legal advice. After that conversation, objectant called Mr. McCoyd and concedes that he was informed by Mr. McCoyd that he could not reveal to objectant the contents of his conversation with decedent. Mr. McCoyd, however, testified that pursuant to decedent's instruction, he was authorized to disclose "that the painting and everything else was for him (objectant) and his sister (proponent)." However, the decedent indicated that she did not want to engage in any planning at that time. Mr. McCoyd further testified that he [*2]made contemporaneous notes of his conversation with decedent.

Attorney Edwin F. Black testified at his SCPA 1404 examination that he met with decedent on January 11, 2002 and entered into a retainer agreement with her. On that date, he prepared a document revoking a power of attorney that the decedent had given to objectant on January 4, 2002. Mr. Black testified that he prepared affidavits for the decedent to be submitted in the pending painting case to the effect that it had been the decedent's intent to make a gift of the painting solely to her daughter (the proponent). Mr. Black stated that he prepared the February 11, 2002 codicil to the decedent's 2001 Last Will and Testament; the codicil removed objectant as co-executor of her estate and designated proponent as sole executor. Mr. Black testified that prior to decedent's execution of the March 25, 2002 Will (the instrument offered for probate), he suggested that decedent undergo a medical examination to evaluate decedent's capacity to determine the distribution of her assets. The resulting medical report, dated March 20, 2002, concluded that the decedent had the capacity to negotiate revisions to her Will and determine distribution of her assets. Mr. Black testified that the primary reason for decedent having disinherited her son was his behavior in pursuing the painting case litigation. Mr. Black furnished proponent with an affidavit in the painting case litigation detailing the subject matter of his conversations with decedent commencing with his retention on January 11, 2002.

The proponent states that the decedent gave her the painting on December 2, 2001 and never expressed an intention to make a joint gift. The litigation concerning ownership of that painting is the subject matter of an action pending in Supreme Court, Westchester County. The proponent states that on January 8, 2002, decedent had her companion call proponent to suggest an attorney because decedent wanted to revoke a power of attorney appointing objectant as her attorney-in-fact. A meeting was scheduled with Mr. Black for January 11, 2002. Prior to that meeting, the proponent avers that the decedent was aware of the commencement of the painting litigation. Proponent states that the decedent not only revoked a power of attorney she had given to the objectant but also revoked a medical power of attorney, denying objectant access to decedent's medical records. Decedent met with Mr. Black on three separate occasions to sign three (3) affidavits in the painting case indicating that it was her intent to make a gift of the painting solely to proponent, contrary to the indication contained in a note dated January 4, 2002 in the decedent's handwriting wherein decedent stated that the painting was a gift to both proponent and objectant. Proponent further avers that the decedent was unhappy with the litigation expenses that the objectant was causing the family to incur.

Objectant contends that the McCoyd conversation is not privileged pursuant to CPLR 4503 (b), that the privilege has been waived either by the decedent or the preliminary executrix and that, in any event, the interests of justice require disclosure. Proponent opposes the motion, as does the guardian ad litem, asserting that the testimony and documents are privileged.

The attorney-client privilege, the oldest among common-law evidentiary privileges fosters the open dialogue between the lawyer and client that is deemed essential to effective representation (Spectrum Systems Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]). It exists to insure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his legal detriment (Priest v Hennessy, 51 NY2d 62, 69 [1980]). The attorney-client privilege has been codified under CPLR 4503 (a) (1) which bars disclosure of any confidential [*3]communications between a client and his/her attorney. There is, however, a statutory exception to the attorney-client privilege which excludes from protection communication otherwise privileged between the attorney and the decedent concerning a Will's preparation, execution, and revocation in proceedings involving the probate, validity or construction of a Will, except as to matters that would tend to disgrace the memory of the decedent (Harris, New York Estates, [5th ed], 19:68).

CPLR 4503 (b) provides: WILLS. In any action involving the probate, validity or construction of a Will, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any Will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disagree the memory of the decedent.

The exception, however, is a narrow one and does not apply to an attorney who did not prepare the Will (see Matter of Matheson, 283 NY 44 [1940]; Matter of Delano, 38 AD2d 769 [1972]; Matter of Stacer, 13 AD2d 164 [1961]; affd 11 NY2d 180 [1962]; Matter of Trotta, 99 Misc 2d 278 [1979] cf. Matter of Trump, NYLJ, Apr. 7, 2000, at 30; Harris , New York Estates, [5th ed], 19:71). Here, the evidence is clear that the McCoyd consultation of January 8, 2002 did not result in Mr. McCoyd's future employment or in Mr. McCoyd performing any legal services for the decedent. It was Mr. Black who performed the legal services for the decedent that are the subject matter of this proceeding. Under such circumstances, the court concludes that the statutory exception is not available herein.

Nor does the court find a waiver of the attorney-client privilege (see generally 9 Weinstein-Korn-Miller, New York Civil Practice [2nd ed], ¶ 4503.20). The evidence showed that the decedent explicitly directed Mr. McCoyd to release only a portion of the subject matter of the January 8, 2002 consultation and not to reveal the balance thereof which the decedent desired to remain privileged. Waiver of the privilege by partial disclosure does not open the door to all communications between the attorney and client but does constitute a waiver of the privilege to the extent of allowing examination as to matters within the authorization (Ostrin v Ostrin, 86 AD2d 655 [1982]; Hamlin v Hamlin, 224 App Div 168 [1928]; 58 A NY Jur 2d, Evidence and Witnesses, § 879, at 401). Nor has there been a showing that there was a waiver of the privilege by the preliminary executrix.

The court, however, does find that disclosure of the McCoyd consultation is appropriate. Obvious tension exists between the policy favoring full disclosure (see e.g. Allen v Crowell-Collier Publ Co, 21 NY2d 403, 406 [1968]) and the policy permitting parties to withhold relevant evidence (Spectrum Systems Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-77 [1991]). The attorney-client privilege promotes the use of legal representation by assuring clients that they may freely confide in their counsel without fear that such confidences may be divulged (Priest v Hennessy, 51 NY2d 62 [1980]). On the other hand, to the extent that it bars production of relevant evidence, the privilege hampers the truth-finding process (Matter of Jacqueline F., 47 NY2d 215, 219 [1979]; Beard v Ames, 96 AD2d 119 [1983]). The Court of Appeals has held [*4]that New York's attorney-client privilege statute (CPLR 4503) is a mere re-enactment of the common-law rule, and that, in order to determine the scope of the attorney-client privilege under CPLR 4503 courts still must look to the common law (Spectrum Systems Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; Hurlburt v Hurlburt, 128 NY 420 [1891]). The Second Department noted in Mayorga v Tate (302 AD2d 11 [2002]), that the common law "has always provided that an executor may, in the interest of the estate, waive the attorney-client privilege of the deceased client" (Mayorga v Tate, 302 AD2d 11, 14 [2002]; cf. Matter of Cunnion, 201 NY 123, 128 [1911]; Matter of Colby, 187 Misc 2d 695 [2001]; Matter of Panattieri, NYLJ, Mar. 14, 2003, at 20). An authoritative treatise states that this rule is "accepted with practical unanimity" (8 Wigmore, Evidence, §2329, at 640 [McNaughton rev 1961 (citations omitted)]). The attorney-client privilege is not absolute and should be "strictly confined within the narrowest possible limits consistent with the logic of its principle" (8 Wigmore, Evidence §2291, at 554 [McNaughton rev 1961]). Much depends on the circumstances of each case and no clear rule of general application can be articulated (Priest v Hennessy, 51 NY2d 62, 68-69 [1980]). In holding that a decedent's personal representative may waive the attorney-client privilege of his or her decedent on behalf of the decedent, the court in Mayorga articulated the basic thesis that it makes no sense to prohibit an executor from waiving the attorney-client privilege of his or her decedent where such prohibition operates to the detriment of the decedent's estate (Mayorga v Tate, 302 AD2d 311, 318 [2002]; see Matter of Colby, 187 Misc 2d 695 [2001]; 8 Wigmore, Evidence §2329 [McNaughton rev. 1961 §2329]).

Furthermore, in controversies between heirs at law, devisees, legatees or next of kin of the client, such communication as in the instant case should not be held privileged because the proceedings are not adverse to the estate. Indeed, the decedent would expect the confidentiality of such communications to be lifted in the interests of resolving disputes over her Will (Matter of Levinsky, 23 AD2d 25 [1965]); app denied, 16 NY2d 484 [1965]; cf., Estate of Snider, NYLJ, Nov. 15, 1995, at 37) and having the truth determined (8 Wigmore, Evidence §2329 [McNaughton rev 1961]). Further, it is generally agreed that in testamentary contests, the privilege is divisible and may be waived by the executor, the next of kin or the legatee (see 8 Wigmore, Evidence §2329 [McNaughton rev 1961]). The court therefore determines that the objectant may waive the attorney-client privilege on behalf of the decedent in the interests of the estate in the truth-finding process. Contrary to the proponent's assertion, it would appear to be in the best interests of the estate that the entire substance of the McCoyd consultation be divulged, to be evaluated by the trier of the fact in ascertaining the decedent's true intent, particularly since the decedent gave conflicting statements as to her wishes within a relatively short period of time. For the same reasoning, the additional documentary information that the objectant seeks is not exempt from disclosure.

In the circumstances of this proceeding, the proponent has an obvious conflict in view of her defensive posture in the painting litigation as well as defending allegations of undue influence in this proceeding. Thus, even if the court were not inclined to find that under the common law a waiver is applicable herein, the court in its discretion would, nevertheless, under SCPA 702(8), grant limited letters to the objectant to represent the estate in view of the fiduciary's conflict of interest.

Accordingly, the objectant's motion to compel the testimony of Edward McCoyd and to [*5]produce allegedly privileged documents is granted to the extent herein indicated.

The above constitutes the decision and order of this court.

Dated: May 13 , 2005

JOHN B. RIORDAN

Judge of the

Surrogate's Court