Matter of Sucich
Annotate this CaseDecided on September 19, 2016
Surrogate's Court, Queens County
In the Matter of the Probate Proceeding, Estate of Stanka Sucich, Deceased.
2015-594/C
Attorney for co-petitioners: Omahdeo Rodrigues and Alim Shaw Parmanand Ramdass, Esq.
Law Offices of Parmanand Ramdass, P.C.
97-13 101st Avenue
Ozone Park, New York, 11416
(718) 441-1066
Attorney for Objectant: Geraldine Donnay O'Donnell & Fox, P.C.
By: Thomas O'Donnell, Esq.
39 Broadway
16th floor
New York, NY 10006
(212) 319-0600
Attorneys for Petitioner under earlier will: Geraldine Donnay Ronald Fatoullah & Associates
By: Yan Lian Kuang-Maoga (Lian), Esq.
60 Cutter Mill Road Suite 507
Great Neck, NY 11021
(516) 466-4422
Attorneys for legatees/movants: Ljubomir Kocic, Slavica Pirman, Zvonko Kocic, Zoran Kocic and Nada Kocic a/k/a Nada Pirman Fisher and Bernstein, P.C.
By: David S. Fischer, Esq.
80-02 Kew Gardens Road, Suite 902
Kew Gardens, NY, 11415
(718) 544-1600
Peter J. Kelly, J.
The Law Offices of Fischer & Burstein, P.C. by David S. Fischer, Esq., as attorneys for five legatees named in an instrument purported to be the decedent's will dated August 30, 2013, moves for a determination whether the appointment of a guardian ad litem for V.K., an incapacitated person, is necessary.
V.K., is a one-sixth legatee and is also a distributee who would be adversely affected if the purported instrument is admitted to probate. Her husband, L.K., is a legatee and is alleged to have the authority to act on V.K.'s behalf pursuant to a written authorization that she executed in 2009 in Slovenia. L.K., as the authorized representative for V.K., has requested that the law firm also represent his wife's interests in this proceeding.
On December 14, 2009, V.K. signed an unattested/unacknowledged writing authorizing her husband, L.K., to represent her in a proceeding before the District Court of Idrija in Slovenia for her admission, without her consent, into a secure ward of a social security institution due to a mental disorder. Pursuant to an order dated January 3, 2016 of the District Court of Idrija in Slovenia, V.K. was determined to have a mental disorder that occurs with Alzheimer's dementia that required that she be placed in a secure institution.
In New York State, an incapacitated person may appear only by a duly appointed guardian or by a guardian ad litem (see, SCPA § 402). There is case law, however, that allows for an attorney-in-fact to appear on behalf of the incapacitated person depending upon the facts of the case.
The authorization V.K. gave to her husband, however, does not apply to the underlying proceeding nor does it comply with the requirements for the execution of a durable power of attorney under New York State Law pursuant to Article 5 of Title 15 of the General Obligations Law or the requirements set forth under Article 97 of Part One Chapter One of the Civil Procedure Act of Slovenia.
Accordingly, L.K. is not authorized to act as V.K.'s attorney-in-fact and appear on her behalf in the within probate proceeding. Furthermore, L.K. has not been appointed the guardian of her person and or property in Slovenia or in any other jurisdiction. Finally, it appears there may be a conflict of interest between L.K., who has an interest in the probate of the purported will as a legatee, and V.K., the incapacitated person, who is not only a legatee but also is adversely affected as she receives a larger legacy in an earlier instrument and is a distributee of one half of the estate.
Accordingly, the motion is determined as follows:
The Court finds that L.K. is not qualified to protect the rights of the incapacitated person for the reasons previously set forth and that V.K., an incapacitated person, is in need of a guardian ad litem to represent her interests in this contested probate proceeding.
Accordingly, a guardian ad litem shall be appointed for V.K., an incapacitated person, forthwith.
This is the decision and order of the Court.
Dated: September 19, 2016___________________________SURROGATE
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