Matter of Karlan

[*1] Matter of Karlan 2006 NY Slip Op 50423(U) [11 Misc 3d 1067(A)] Decided on March 23, 2006 Sur Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2006
Sur Ct, Nassau County

In the Matter of the Estate of Blanche Karlan, Deceased.



340048



Leonard A. Isaacson, Esq. (Attorney for the Estate and Petitioners)

Feder, Kaszovitz, Isaacson, Weber, Skala,

Bass & Rhine LLP

750 Lexington Avenue

New York, NY 10022-1200

John B. Riordan, J.

This is an application by one of the nominated fiduciaries who is the attorney-draftsman of the decedent's Will and a petitioner in this proceeding, for a waiver of compliance with SCPA 2307-a allowing for the payment of full commissions. For the reasons that follow, the application is denied.

The decedent, Blanche Karlan, died leaving a Will dated October 26, 2004. In the purported Will, the decedent makes a number of cash bequests to various individuals and a $10,000.00 bequest to "AHRC NEW YORK CITY FOUNDATION INC. in appreciation of the advice and friendship of my attorney" The decedent's residuary estate is bequeathed to Richard Geisman, Jr. and Jennifer Geisman, or the survivor of them. In Article SEVENTH of the purported Will, the decedent nominates three co-executors: her nephew; her attorney; and her daughter's stepson. In the event any of them fails or ceases to act, the decedent names her attorney's son, and her attorney's partner, as an alternate co-executor, in that order.

According to the probate petition, the decedent's gross testamentary estate is valued between $1,500,000.00 and $2,500,000.00. In addition, the petition recites that the decedent's nephew, is a non-practicing retired attorney.

In support of his application, the attorney-draftsman, states, by affidavit, that he was the attorney-draftsman of the decedent's purported Will and is a member of the law firm representing the petitioners in connection with the estate administration. The attorney-draftsman avers that he knew the decedent and her family for at least fifteen years prior to her death. During the course of his representation of the decedent, he prepared numerous Wills for her, and on each occasion, she specifically requested that he act as a co-executor.

The decedent executed prior Wills on April 15, 2000, June 19, 2001 and July 12, 2001. At the time each of her prior Wills was executed, the decedent executed a written acknowledgment of disclosure in the form set forth in SCPA 2307-a. In addition, the attorney-draftsman asserts that although he is "almost certain" that the decedent executed a written acknowledgment of disclosure when the purported Will was executed, he has not been able to locate any acknowledgment after a diligent search.

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 decedent's 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 [*2]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] (SCPA 2307-a[1][a][b][c])

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.

The purported Will here was executed on October 26, 2004. Accordingly, there is no occasion for the court to grant a waiver of compliance. Petitioner's argument that the prior acknowledgments satisfy the disclosure requirement is unavailing (see Matter of Atkinson, Surr. Ct., Onondaga County, May 19, 2005, Wells, J., File No.: 05-0491 [commissions of attorney/fiduciary limited to one-half statutory commission where written acknowledgments of disclosure were executed for two prior Wills, but none was executed at time of propounded instrument]). SCPA 2307-a(2) provides that the written acknowledgment of disclosure may be executed "prior to, concurrently with or subsequently to" the Will. Here, the prior written acknowledgments of disclosure were all executed more than three years earlier than the purported Will. Absent a signed and witnessed disclosure statement relating to the purported Will, there is no indication that the issue of fiduciary compensation was squarely put before the testator. To allow a full commission under these circumstances would frustrate the legislative intent of the statute (see Matter of Atkinson, Surr. Ct., Onondaga County, May 19, 2005, Wells, J., File No.: [*3]05-0491).

Pursuant to SCPA 2313 since there will be more than two executors acting, no more than two full commissions shall be allowed. SCPA 2313 provides that the allowable compensation shall be apportioned among the fiduciaries according to the services rendered by them respectively or in accordance with a different apportionment as shall have been agreed by them in writing provided, however, that no fiduciary shall be entitled to more than one full commission. Accordingly, the attorney-draftsman shall not be entitled to more than one-half of one full commission due to his failure to comply with the requirements of SCPA 2307-a(2).

This constitutes the decision and order of the court.

Dated: March 23, 2006

John B. Riordan

Judge of the

Surrogate's Court

The appearance of counsel is as follows: 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 would be entitled to receive.