Matter of Milliot

[*1] Matter of Milliot 2013 NY Slip Op 51762(U) Decided on October 25, 2013 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2013
Sur Ct, Dutchess County

In the Matter of the Estate of Probate Proceeding, Will of M. Grayce Milliot.



2011-1000352/A



McCabe & Mack, LLP

Attorneys for John D. Milliot

P.O. Box 509

Poughkeepsie, New York 12602

Gellert & Klein, P.C.

Attorneys for Daryll Milliot

75 Washington Street

Poughkeepsie, New York 12601

James D. Pagones, J.

Petitioner Daryll Milliot, as a distributee/grandson of the decedent, seeks to compel decedent's son and proposed Executor of the propounded instrument, John D. Milliot, to produce a formal accounting of his actions taken as attorney-in-fact for the decedent. Petitioner also objects to the petition by John D. Milliot for probate of the Will and Letters Testamentary.

The following papers were read:

Petition to Compel Accounting-Verification-1-3

Exhibit A

Verified Answer4

Reply and Response5

Accounting by John D. Milliot6 [*2]

Objections to Final Account-Exhibits A-E7-12

Answer to Objections13

Objection to Petition-Exhibit A-F14-20

Verified Answer21

Reply and Response22

An attorney-in-fact is an agent of the principal, and since an agent is a fiduciary, a relationship of trust and confidence exists between him and the principal (see Matter of De Belardino, 77 Misc 2d 253 [Sur Court, Monroe County 1974] decree affirmed by 47 AD2d 589). Accordingly, the agent must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing (id.).

The Surrogate's Court has jurisdiction to direct an account by an attorney-in-fact (see Matter of Holmberg, 206 AD2d 479 [2nd Dept 1994]; Matter of Cohen, 139 Misc 2d 1082 [Sur Ct, Rensselaer County 1988]; Matter of Iannone, 104 Misc 2d 5 [Sur Ct, Monroe County 1980]).

Here, the best interests of the estate would be served by John D. Milliot producing and filing a formal accounting of his actions taken as attorney-in-fact for the decedent, for the period commencing on June 11, 2008 and ending on December 27, 2010 (see In re Morrison, 268 AD2d 435 [2nd Dept 2000] leave to appeal dismissed in part, denied in part 95 NY2d 845 reargument denied by 95 NY2d 959; In re Nickerauer, 1998 WL 35429551 [Sur Ct, Suffolk County 1998]). This court recognizes that John D. Milliot filed an informal accounting on March 6, 2013, however, this accounting is unsupported by any documentation and fails to sufficiently set forth the actions taken by John D. Milliot on behalf of the decedent while serving as her attorney-in-fact. In light of the lack of a formal accounting, this court is currently ill equipped to properly determine the objections to the petition for probate and Letters Testamentary. Specifically, a formal accounting is needed, as the objections allege that John D. Milliot commingled funds, failed to maintain records, withdrew funds and that funds are missing.

Based upon the foregoing, the petition to compel a [*3]formal accounting is granted in its entirety. The formal accounting shall be filed on or before January 9, 2014. The objections to the petition by John D. Milliot for probate of the Will and Letters Testamentary are held in abeyance pending submission of a formal accounting by John D. Milliot in his role as attorney-in-fact for the decedent, for the period commencing on June 11, 2008 and ending on December 27, 2010. Petitioner is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.

The foregoing constitutes the decision of this court.

Dated:Poughkeepsie, New York

October 25, 2013

ENTER

HON. JAMES D. PAGONES, S.C.J.

102513 decision