Matter of Cassini
Annotate this CaseDecided on June 11, 2007
Surrogate's Court, Nassau County
In the Matter of the Estate of Oleg Cassini, Deceased.
343100
The appearances of counsel are as follows:
(Attorneys for Petitioner)
Putney Twombly Hall & Hirson
521 Fifth Avenue
New York, NY 10175
(Guardian ad Litem for Daria Cassini)
Gary B. Freidman, Esq.
600 Third Avenue, 11th Floor
New York, NY 10016
(Guardian of the person and property of Daria Cassini)
Richard Rowe, Esq.
39 Scudder Road
Westfield, NJ 07090
(for distributee/beneficiary Christina Cassini)
Busell & Stier
98 Cutter Mill Road
Suite 395N
Great Neck, NY 11021
John B. Riordan, J.
In this uncontested probate proceeding, the petitioner is Marianne Nestor Cassini, the decedent's surviving spouse who is the nominated executor, the sole residuary beneficiary and the trustee of the Article SIXTH trust under the offered instrument. Upon motion of petitioner, this matter was transferred to this court by order of the Surrogate's Court, New York County (Surrogate Glen) dated June 26, 2006.
Oleg Cassini died on March 17, 2006 survived by his wife Marianne and his two adult daughters by his prior marriage to Gene Tierney, Christina Cassini Granata Belmont and Daria Cassini. Daria Cassini is an incapacitated person who has been deaf, blind and mentally retarded since birth.
Under the propounded instrument the decedent provided for a $500,000 trust for his incapacitated daughter Daria, remainder to her sister Christina or her issue. The will also provides a specific bequest of $1,000,000 to Christina. According to the application for preliminary letters testamentary, the size of decedent's gross estate is approximately $52,000,000. Christina has appeared by counsel in this proceeding and indicated she has no objection to the will.
The guardian ad litem for Daria Cassini appointed by this court has filed his report. The guardian ad litem concludes that jurisdiction has been obtained over his ward. The guardian ad litem further concludes that after his investigation of the circumstances of the drafting and execution of the will, that there are no grounds for objecting to the instrument for failure of due execution, no evidence of mental disability or lack of testamentary capacity of this decedent nor any indication of the exercise of undue influence by anyone. Thus he concludes no basis exists to deny probate to the propounded instrument.
However, the guardian ad litem does report to the court concerning a property settlement agreement dated January 20, 1952 between the decedent and his former spouse. The agreement was incorporated into an interlocutory judgment of divorce entered March 3, 1952 in the Los Angeles County Superior Court of the State of California. In pertinent part the agreement provides in paragraph 17 thereof:
"17. Husband agrees that he will by testamentary disposition leave not less than one-half of his net estate, after payment of debts and taxes, to Daria and Christina in equal proportions."
The final judgment of divorce between Oleg Cassini and Gene Tierney entered April 7, 1953, makes only some elliptical reference to the agreement. Thus there are questions of the legal effect of the omission of any direct reference to the decedent's obligation to make certain testamentary dispositions to his children in the final decree. These issues are more properly [*2]addressed in a proceeding to enforce or determine Daria and/or Christina' s rights as a third party beneficiary of the Oleg Cassini-Gene Tierney Agreement and Final Divorce Decree. The guardian ad litem points out that these issues affect his ward's rights and she is incapable of adequately protecting her rights under her mother's agreement with her father.
After providing a copy of his report to Richard Rowe, the guardian of the person and property of Daria Cassini, the guardian ad litem requests that the court authorize him, or appoint another guardian ad litem, to pursue Daria's possible entitlement to a one-fourth interest in Oleg Cassini 's estate under the California Agreement and Final Decree of Divorce from Gene Tierney.
The Court has now received a letter from Richard Rowe, Daria's court-appointed co-guardian of the person and property with her father Oleg Cassini under letters issued by State of New Jersey, Cumberland County Surrogate's Court dated February 28, 1997. Mr. Rowe requests that this court not appoint another guardian ad litem to pursue Daria's possible entitlements but that this court allow him to retain an attorney of his own choosing to pursue Daria's claim.
Whenever a person under disability is a necessary party in a proceeding and does not appear by the guardian of her property the court appoints a guardian ad litem to represent her in that proceeding (SCPA 402). The guardian ad litem's primary duty is to protect the best interests of his ward (SCPA 404[3]). On the other hand, a guardian ad litem has no duty to protect his ward's interest outside the scope of the proceeding in which he was appointed (Tate v McQuade, 83 Misc 2d 951 [Supreme Ct. Westchester Co. 1975]); Turano and Radigan, New York Estate Administration [2007 ed.] §7.03[e][2]). Thus it is not the duty of a guardian ad litem in probate proceedings to delve into matters such as accounting, discovery, construction of the will, etc. that may arise in subsequent proceedings. However if something comes to his attention that may be of concern to his ward, such as Daria's potential claim, he should report it to the court (Hon. John B. Riordan, The Role of the Guardian ad Litem in Surrogate's Court, May 2001 at page 22).
The power of a surrogate to direct a guardian ad litem to commence a proceeding on his ward's behalf has been questioned (Tate v McQuade, 83 Misc 2d 951 [Supreme Court, Westchester Co. 1975]). Except for the statutory power of a guardian ad litem to exercise a right of election on behalf of a surviving spouse with court approval (EPTL 5-1.1-A [c][3]), there is no other statute which gives a surrogate power to direct a guardian ad litem to commence a proceeding or perform an act outside of his representation of his ward in a pending proceeding.
In this matter, if a proceeding to enforce the divorce agreement is brought by Christina or by the guardian of the property of Daria, it will be appropriate to consider the appointment of a guardian ad litem to protect Daria's potential claim (SCPA 402). Similarly, the court would appoint a guardian ad litem who could raise the same issue in an accounting proceeding commenced by the petitioning executor, Marianne Cassini. Accordingly, the court declines to appoint a guardian ad litem to pursue Daria's possible entitlement to a one-fourth interest in Oleg Cassini's estate. The guardian of her property may take whatever action he deems appropriate.
In all other respects, the court being satisfied as to the genuineness of the will, the validity of its execution, that the testator was competent to make a will and not under any restraint, it is admitted to probate (SCPA 1408).
With respect to the issue of attorney fees, the court bears the ultimate responsibility for [*3]approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate (Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995]; Matter of Phelan, 173 AD2d 621, 622 [2d Dept 1991]). While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily" (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]).
In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); the complexity of the questions involved (Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]); the nature of the services provided (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); the amount of litigation required (Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and the customary fee charged by the Bar for similar services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], aff'd 213 App Div 59 [4th Dept 1925], aff'd 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974]). In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts (123 Misc 346 [Sur Ct, Columbia County 1924], aff'd 213 App Div 59 [4th Dept 1925], aff'd 241 NY 593 [1925]), and as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate (Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], aff'd 23 NY2d 700 [1968]; Martin v Phipps, 21 AD2d 646 [1st Dept 1964], aff'd 16 NY2d 594 [1965]). A sizeable estate permits adequatecompensation, but nothing beyond that (Martin v Phipps, 21 AD2d 646 [1st Dept 1964], aff'd 16 NY2d 594 [1965]; Matter of Reede, NYLJ, Oct. 28, 1991, at 37, col 2 [Sur Ct, Nassau County]; Matter of Yancey, NYLJ, Feb. 18, 1993, at 28, col 1 [Sur Ct, Westchester County). Moreover, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], aff'd 23 NY2d 700 [1968]), without constituting an adverse reflection on the services provided.
The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], aff'd 213 App Div 59 [4th Dept 1925], aff'd 241 NY 593 [1925]; see e.g. Matter of Spatt, 32 NY2d 778 [1973]). Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]; Matter of Phelan, 173 AD2d 621 [2d Dept 1991]).
These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Burk, 6 AD2d 429 [1st Dept 1958]; Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]; Matter of Reisman, NYLJ, May 18, 2000, at 34 [Sur Ct, Nassau County]). Moreover, the nature of the role played by the guardian ad litem is an [*4]additional consideration in determining his or her fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]).
In this matter the guardian ad litem spent 14.60 hours at his usual hourly rate of $525 for a requested total fee of $7,665. The guardian at litem, besides his usual duties of conferring with petitioner's counsel and interviewing the attorney/drafter and attesting witness, and preparing his reports in this case, communicated with his ward's sister's counsel, reviewed the Gene Tierney-Oleg Cassini Property Settlement, Interlocutory and Final Judgment of Divorce and the California cases concerning the import of the agreement. Considering all the factors set forth above, including the size of the estate, the guardian ad litem's professional standing and unique additional issue in this case, the fee as requested is approved.
Settle decree on notice to counsel of record and the guardian ad litem.
Dated: June 11, 2007
John B. RiordanJudge of the
Surrogate's Court
The appearances of counsel are as follows:
(Attorneys for Petitioner)
Putney Twombly Hall & Hirson
521 Fifth Avenue
New York, NY 10175
(Guardian ad Litem for Daria Cassini)
Gary B. Freidman, Esq.
600 Third Avenue, 11th Floor
New York, NY 10016
(Guardian of the person and property of Daria Cassini)
Richard Rowe, Esq.
39 Scudder Road
Westfield, NJ 07090
(for distributee/beneficiary Christina Cassini)
Busell & Stier
98 Cutter Mill Road
Suite 395N
Great Neck, NY 11021
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