Matter of Leddy

[*1] Matter of Leddy 2014 NY Slip Op 50643(U) Decided on February 28, 2014 Sur Ct, Nassau County McCarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014
Sur Ct, Nassau County

In the Matter of the Proceeding to Invalidate the Alleged Amendments to the LIVING TRUST OF John Leddy, dated February 25, 2013 and March 15, 2013.



2013-374927/A



The appearances of counsel are as follows:

(for Respondent)

Nelson A. Vinokur, Esq.

20 West Park Avenue

Long Beach, NY 11561

(for Petitioners)

Farrell, Fritz P.C.

1320 RXR Plaza

Uniondale, NY 11556

Edward W. McCarty III, J.

In this proceeding to determine the validity of an amendment to an inter vivos trust, petitioners move for an order compelling disclosure.

Decedent died on March 18, 2013 survived by five children four of whom are the petitioners in this proceeding. A purported will of the decedent dated February 25, 2013 bequeaths the residue of the estate to an inter vivos trust. The instrument is on file with the court but has not been offered for probate. An inter vivos trust, dated April 12, 2011, designates the decedent/grantor as the income beneficiary and provides for the division of the remainder into equal shares for his children. A purported amendment to the trust directs the payment of the entire remainder to one child, Richard Leddy, respondent in this proceeding. Petitioners commenced this proceeding to determine the validity of the amendment.

At issue on this motion is the disclosure of communications between the decedent and the attorney-draftsman of the amendment. The attorney represents the respondent in this proceeding. At a deposition, the attorney refused to testify regarding communications with the decedent on the grounds of attorney-client privilege.

Barbara Ruff, one of the petitioners on this proceeding, is the nominated executor of the instrument dated February 15, 2013. However, she lacks standing to waive the privilege, in the capacity of executor (Maryorga v Tate, 302 AD2d 11 [ 2d Dept 2002]) as the instrument has not been admitted to probate. She cannot receive preliminary letters testamentary as the instrument has not been offered for probate. Petitioners seek the issuance of temporary letters of administration for the purpose of exercising control of the privilege.

CPLR 4503 pertains to a proceeding concerning the validity, probate and construction of a will. Petitioners make a persuasive argument that the trust is the "functional equivalent of a will," based upon the pour over provision in the February 15, 2013 instrument. The court need not determine whether this meets the statutory requirement.

It is generally recognized that, in addition to the statutory exception, the privilege does [*2]not apply in a dispute between parties as to an interest in property which they claim through the same decedent (Restatement [Third] of the Law Governing Lawyers § 81 [2000]; see also Matter of Levinsky, 23 AD2d 25 [2d Dept 1965; appeal denied 16 NY2d 484 [1965]; 1 McCormick on Evid. § 94 [7th ed.]).

It is therefore concluded, consistent with this court's decision in Matter of Bronner (7 Misc 3d 1023 [A] [Sur Ct, Nassau County 2005]) that petitioners can examine the attorney as to communications with the decedent concerning the drafting of the amendment in question.

Settle order.

Dated: February 28, 2014 Edward W. McCarty III

Judge of the

Surrogate's Court