Matter of Becker

[*1] Matter of Becker 2005 NY Slip Op 50796(U) Decided on May 27, 2005 Surrogate's Court, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2005
Surrogate's Court, Bronx County

IN THE ESTATE OF MARTHA BECKER, Deceased



118-P/05



McCanliss & Early, LLP, (Charles D. Mooney, Esq., of counsel) for Gilbert Isaac, Esq. and Pearl Barnes, nominated executors

Lee L. Holzman, J.

In this probate proceeding, the nominated co-executor, the attorney who drafted the propounded will dated July 26, 2002, contends that his statutory commissions should not be reduced pursuant to SCPA 2307-a(5), which provides that, where the attorney-drafter-executor fails to have the testator execute the written acknowledgment of disclosure required by subdivision 2, his commissions are limited to one-half of the statutory commissions to which he would otherwise be entitled. Counsel asserts that the language in paragraph Fifth of the will, stating that "he shall be entitled to a commission as provided by statutory law for services rendered in connection with the administration of my Estate", complies with the written acknowledgment of disclosure mandated by SCPA 2307-a(2).

Counsel's position cannot be sustained for two reasons. Paragraph Fifth of the will fails, inter alia, to disclose all of the persons who are eligible to serve as an executor or that counsel can be compensated for legal services rendered in addition to commissions. This information is required to be set forth in the written acknowledgment of disclosure (SCPA 2307-a[1][2]). The second reason that counsel's request must be denied is that the Appellate Division, First Department, recently held in Matter of Lustig (15 AD3d 184 [2005]) that the amendment to SCPA 2307-a(2), explicitly providing that the written acknowledgment of disclosure "must be separate from the will, but which may be annexed to the will" (L. 2004, ch. 709, effective November 15, 2004), was applicable to wills executed prior to its effective date. The Lustig court stated that "although the requirement of SCPA 2307-a of a separate written acknowledgment of disclosure was not expressed with optimum clarity in the original version of the statute, ... the amendment eliminates any relevant uncertainty as to what the statute as originally enacted was intended to require." Thus, the cases decided prior to the amendment, and noted in Lustig, are now relegated to being part of the legislative history to the amendment.

With respect to the propounded instrument, the court is satisfied that the testatrix executed it in compliance with the statutory requirements and that, at the time of execution, she was competent to make a will and free from restraint. Accordingly, the will is entitled to be admitted to [*2]probate (EPTL 3-2.1; SCPA 1408).

Decree signed.

SURROGATE