Matter of Gurnee

[*1] Matter of Gurnee 2007 NY Slip Op 51408(U) [16 Misc 3d 1113(A)] Decided on June 28, 2007 Sur Ct, Suffolk County Czygier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2007
Sur Ct, Suffolk County

In the Matter of the Probate Proceeding, Will of Virginia F. Gurnee, Deceased.



134 P 2005



Osborne & McGowan, PC

By: Thomas J. Osborne, Esq.

Attorney for Objectant

135 Main Street

PO Box 5011

East Hampton, NY 11937

Andrew M. Cuomo

Attorney General of the State of New York

Attorney for Ultimate Charitable Beneficiaries

By: Amy C. Karp, Esq.

Assistant Attorney General

Charities Bureau

120 Broadway

New York, NY 10271

John M. Czygier, J.

In the context of captioned proceeding a decree of probate was issued by this court on August 25, 2006 which, inter alia, limited commissions to both executor-designees (both of whom are attorneys) to one-half the statutory commissions for failure to comport with the requisites of SCPA 2307-a. It is noted that the underlying petition for probate indicates that the total value of the estate is between $800,000 and $1,300,000. The application before the court at this time seeks an order amending the decree to allow for a full commission to be paid to each executor-designee.

Jurisdiction has been obtained over all parties and no one has appeared in opposition to the relief sought. The request must be denied; both executors are limited to one-half statutory commissions for failure to comply with SCPA 2307-a. [*2]

By affidavit, the attorney-draftsman has informed the court that the will admitted to probate dated February 11, 2005 was preceded by another document dated February 8, 2005. Movants have supplied the original of the February 8, 2005 document to the court. The attorney-draftsman and one of the movants witnessed both documents. According to the attorney-draftsman who supervised the execution of both wills, the February 8th document, including the attestation clause, was read to the testator because her eyesight was poor, as noted by a handwritten insertion made at the time of execution. A SCPA 2307-a disclosure was also read to her on that date. It was later decided that it would be better to have the entire will retyped rather than having a will containing handwritten insertions. Thus, the execution of the February 11th document. Due to an oversight an SCPA 2307-a disclosure was not executed with the later document and, except for the added language regarding testator's eyesight, both wills are identical. Movants urge that the written acknowledgment of disclosure which accompanies the February 8th document is sufficient as an acknowledgment with respect to the February 11th document due to the closeness in time within which the identical documents were executed.

SCPA 2307-a requires that when an attorney prepares a will to be proved in the courts of this state and such attorney or a then affiliated attorney is therein an executor-designee, the testator must be informed, prior to executing the document: (1) that, subject to limited exceptions, any person, including an attorney, is entitled to be an executor; (2) absent an agreement to the contrary, any person, including an attorney, is entitled to receive statutory commissions; and (3) in addition, if the attorney-executor renders legal services in connection with the executor's official duties, he is entitled to reasonable attorney's fees for those services. The statute goes on to articulate that the disclosure by the testator must be set forth in writing and executed by the testator in the presence of at least one witness other than the executor-designee. That writing, which must be separate from the will, may be annexed to the will and may be executed prior to, concurrently with, or subsequent to, the execution of the will, and must be filed in the proceeding for the issuance of letters testamentary to the executor-designee. The statute, originally enacted in 1995, was amended in 2004 by expanding the model form to state that "absent execution of this disclosure acknowledgment, an attorney who serves as an executor shall be entitled to one-half the commissions he would otherwise be entitled to receive ..." (SCPA 2307-a(3)(a)(iii), eff. 11/16/2004). Inclusion of that language in the acknowledgment of disclosure has been held to be a [*3]fundamental element for compliance with the statute (see Matter of Tackley, 10/10/2006 NYLJ at 33, col 5). The February 8th disclosure lacks the language required by the 2004 amendment and for that reason fails to comply with SCPA 2307-a. Accordingly, reliance on that document is misplaced and its temporal proximity is immaterial.

Decedent's will grants specific bequests to several nephews and friends and to a number of charities. The residuary estate is left to six charities in equal shares. Review of the court's file reveals that one of those charities has submitted a letter indicating, through counsel, that it has no objection to the relief. The New York Attorney General has appeared but has not taken a position; none of the other interested parties has submitted a consent to the requested relief, nor have movants suggested that the court deem the fiduciaries to be in compliance with SCPA 2307-a by virtue of valid disclosures executed by all interested parties, who in effect would bear the burden of funding the full commission (see Matter of Brokken, 12 Misc 3d 244).

Although the court is aware of the seemingly harsh result in requiring strict adherence to SCPA 2307-a, it is constrained to adhere to its clear mandate: a written acknowledgment of disclosure must be set forth in writing in a document separate from the will, and must substantially conform to the model contained in the statute. Valid disclosure forms executed in connection with earlier wills of the testator may not be utilized as proof of compliance with SCPA 2307-a when a later will is offered for probate since there is no indication that the issue of fiduciary compensation was squarely put before the testator (see Matter of Karlan, 4/11/2006 NYLJ at 9, col 3). 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 (see e.g. Matter of Marcus, 6/23/99 NYLJ at 33, col. 4; Matter of Castelnouvo, 6/23/99 NYLJ at 33, col 3; Matter of Waldman, 172 Misc 2d 130). The language of the statute is also clear - a waiver of compliance may not be granted with respect to wills executed after January 1, 1996. The request for relief, therefore, is denied.

The foregoing constitutes the decision and order of the court.

[*4]

JOHN M. CZYGIER, JR., Surrogate