Matter of Rafailovich
Annotate this CaseDecided on March 23, 2012
Sur Ct, Bronx County
In the Matter of the Estate of Sylvia Rafailovich, Deceased.
2011-3112
The only appearance is as follows:
Ira Halfound, P.C., for Ira Halfond and Miriam Rafailovich-Sokolov, proponents
Lee L. Holzman, J.
In this probate proceeding the nominated co-executor, the attorney who drafted the propounded instrument dated April 24, 2002, submits a separate written acknowledgment of disclosure, dated the same date, which was signed by the testator in the presence of a witness. The issue presented is whether amendments to SCPA 2307-a enacted thereafter should, in effect, be applied retroactively resulting in a one-half reduction of the statutory commissions payable to the co-executor attorney.
The acknowledgment contains only three of the four disclosures presently required in an acknowledgment of disclosure under SCPA 2307-a. Specifically, it lacks the statement set forth in the 2004 amendment to SCPA 2307-a, effective November 16, 2004, which is embodied in the models of acknowledgment of disclosure provided in SCPA 2307-a (3) (a) (iii) that, "absent execution of this disclosure acknowledgment, the attorney who prepared the will, . . . who serves as an executor shall be entitled to one-half the commissions he or she would otherwise be entitled to receive." That same language was added to SCPA 2307-a (1) (c) as a statutory requirement in 2007, when other provisions of SCPA 2307-a were also amended (see Matter of Buckley, 29 Misc 3d 1059, 1063 n 2 [2010], citing L 2007, ch. 488, effective August 31, 2007).
SCPA 2307-a (4), entitled "Compliance" provides, in subdivision (a), that the testator's written acknowledgment of disclosure that "conforms or substantially conforms to either model in subdivision 3 of this section shall be deemed compliance . . . " Where the propounded instrument is executed after both the 2004 amendment to SCPA 2307-a models of acknowledgment of disclosure (see SCPA 2307-a [3] [a] [iii]), and the 2007 statutory amendment adding the same requirement (see SCPA 2307-a [1] [c]), it appears clear that the attorney is entitled to only one-half of the statutory commissions as set forth in SCPA 2307-a (5) (see Matter of Mayer, 32 Misc 3d 1229 [A], 2011 NY Slip Op 51495 [U] [2011] [concerning will executed March 8, 2011]).
Where the will was executed after the 2004 amendment to the models of acknowledgment of disclosure, but before the 2007 statutory amendment to SCPA 2307-a (1), there is conflicting authority. At least two courts held that the attorney is entitled to only one-half of the statutory commissions as there was no "substantial compliance" with the models acknowledgment of disclosure within the meaning of SCPA 2307-a (4) (see Matter of Tackley, 13 Misc 3d 818 [2006]; see also Matter of Fullen, NYLJ, Nov. 26, 2007, at 32, col 1 [will dated June 10, 2005]). At least one other court declined to follow Matter of Tackley (13 Misc 3d at [*2]818) finding, under the same circumstances, that the attorney-drafter was entitled to full statutory commissions as no statutory requirement to include such language was imposed by SCPA 2307-a (1) (c) until 2007 (see Matter of Buckley, 29 Misc 3d at 1059 [will executed July 25, 2005, after the date of the 2004 amendment to the models of acknowledgment of disclosure, but prior to the 2007 amendment]).
It is not necessary in this proceeding to decide between Matter of Tackley (13 Misc 3d at 818) and Matter of Buckley (29 Misc 3d at 1059) because, notwithstanding that as a general rule a will does not "speak" until the date of the testator's death (see SCPA 2307-a [9]), where, as here, the will is executed prior to the effective date of both the 2004 and 2007 amendments to SCPA 2307-a, and otherwise comports with statutory requirements in effect at the time the will was executed, the courts hold that the additional language added by the 2004 and 2007 amendments to SCPA 2307-a does not apply retroactively, and if the disclosure statement is otherwise in compliance with the statute in effect at the time of execution, the drafting attorney is entitled to full statutory commissions (see Matter of Winters, 25 Misc 3d 631 [2009] [will executed in 1994]; Matter of Moss, 21 Misc 3d 507 [2008] [will executed October 11, 2004]; Matter of Griffin, 16 Misc 3d 295 [2007] [will executed in 2002]).
Under the situation presented in this proceeding, involving a will executed on April 24, 2002 prior to the 2004 and 2007 amendments to SCPA 2307-a, the court finds that there is compliance with the statute in effect at the time of execution, and the attorney co-executor is entitled to full statutory commissions (see Matter of Winters, 25 Misc 3d at 631; Matter of Moss, 21 Misc 3d at 507; Matter of Griffin, 16 Misc 3d at 295).
The court is satisfied that the testator executed the propounded instrument in compliance with statutory formalities and that, at the time of execution, the testator was competent to make a will and free from restraint (SCPA 1408; EPTL 3-2.1).
Accordingly, the will dated April 24, 2002 is entitled to be admitted to probate, and the attorney executor is entitled to full statutory commissions.
Decree signed.
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SURROGATE
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