Matter of Mayer

[*1] Matter of Mayer 2011 NY Slip Op 51495(U) Decided on August 9, 2011 Sur Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2011
Sur Ct, Bronx County

Estate of Clare Mayer, Deceased



2011-864

 

Barry A. Mahler, Esq., for himself and Ursula Bauer, proponents

Lee L. Holzman, J.

In this probate proceeding the nominated co-executor, the attorney who drafted the propounded instrument dated March 8, 2011, submits a separate written acknowledgment of disclosure signed by the testator in the presence of a witness. This acknowledgment is dated the date of the will and it contains only three of the four disclosures required in an acknowledgment of disclosure under SCPA 2307-a. Apparently, the disclosure form used by the attorney pre-dated the 2004 amendment to SCPA 2307-a, effective November 16, 2004, which, inter alia, added new subdivisions (3) (a) (iii) and (3) (b) (iii), providing that the acknowledgment of disclosure must include a statement that "absent execution of this disclosure acknowledgment, the attorney who prepared the will. . . (and) who serves as an executor shall be entitled to one-half the commissions he or she would otherwise be entitled to receive." The submitted acknowledgment lacks this statement; and therefore, does not comply with the statutory requirements in effect at the time the will was executed. Accordingly, the commissions of the attorney-fiduciary are limited pursuant to SCPA 2307-a (5) to one-half the statutory commissions to which he would otherwise be entitled (see Matter of Tackley, 13 Misc 3d 818 [2006]). Nonetheless, the court is not passing upon whether the 2004 amendment is applicable to estates of decedents who died after November 16, 2004 with wills executed prior to that date.

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 March 8, 2011 is entitled to be admitted to probate, and the attorney-executor is limited to one-half of the statutory commissions to which he would otherwise be entitled.

Decree signed.

_____________________SURROGATE