Matter of White

[*1] Matter of White 2018 NY Slip Op 50638(U) Decided on May 2, 2018 Surrogate's Court, Oneida County Gigliotti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 2, 2018
Surrogate's Court, Oneida County

In the Matter of the Estate of Betty Marcine White, Deceased.



2016-734



For the Petitioner: Patricia Shaffer Bobrow, Esq.

For the Objectant: Richard G. Parker, Esq., guardian ad litem
Louis P. Gigliotti, S.

Pending before the Court is the amended probate petition filed by Daniel Anthony Drennan ("Petitioner") as the nominated executor of the Last Will and Testament of his grandmother, Betty Marcine White ("Decedent"). The Will, which was witnessed by Petitioner's mother and brother, leaves the entire estate to Petitioner.

All of Decedent's distributees were duly cited. On the return date of the initial citation, three of the distributees appeared with counsel, and another two indicated they would retain counsel. The Court thereafter appointed a guardian ad litem for one such distributee named Freddy Fuller, based upon the following reasoning: (1) he is incarcerated; (2) the Will provided that he would receive less than his intestate share; and (3) the proceedings appeared to be contested. (See SCPA § 103(40) [defining "person under disability" to include a person "confined as a prisoner who fails to appear under circumstances which the court finds are due to confinement in a penal institution"] and SCPA §§ 402(2) & 403(2)).

Mr. Fuller's first guardian ad litem requested an examination of attesting witnesses in accordance with SCPA § 1404. He further asked to be replaced because his office was located more than two hours away from the Court and, considering the size of the estate, he felt it would be uneconomical for him to appear for the examination. The Court named a successor, who confirmed the request for the examination. No other distributee requested an examination or filed objections, and their time for doing so has now expired.

The examination was held on December 21, 2017. Both attesting witnesses were questioned by Vincent J. Rossi, Jr., Esq., who was assisting the guardian ad litem on a pro bono basis. Following the conclusion of the examination, and before a transcript of the proceedings could be ordered, Petitioner offered to pay Mr. Fuller's full intestate share (i.e., a 1/24 [*2]distribution of the net assets of the estate) in exchange for his waiver and consent.

The guardian ad litem filed an interim report dated March 12, 2018, in which he presented the terms of the above-referenced settlement proposal. The difficulty however, is that Mr. Fuller does not want to accept the offer. According to the interim report, "Mr. Fuller has expressed a reluctance to accept the share to which he would be entitled if the Will is overturned and is desirous to proceed with a hearing for the benefit of other distributees of the Decedent." The guardian ad litem seeks the Court's direction because he feels obliged as a fiduciary and an officer of the court to accept the proposal.

The appointment of a guardian ad litem to appear on behalf of a person with a disability is distinct from the appointment of an attorney who would represent the interests of such person. "[T]he guardian ad litem, by reason of his appointment, is an arm of the court, and his promise to perform runs to the court rather than directly to his ward . . . ." (1 Warren's Heaton, Surrogate's Court Practice § 8.18[2] [2018] [Note: online treatise]). The ward can be considered a third-party beneficiary. (See id.). That being said, the ward is bound by the proceedings in which a guardian ad litem appears on his or her behalf, and the doctrine of res judicata has been applied in cases where a ward tries to raise issues previously addressed. (See SCPA § 406 ["Whenever a guardian ad litem shall be appointed for a person under disability as defined in this act . . . the proceeding shall be binding upon such person to the same extent as if such person was under no disability."]; 1 Warren's Heaton, Surrogate's Court Practice § 8.18[3]). A ward may be able to seek relief where a guardian ad litem acts with negligence or in ways that run counter to the ward's best interests. (See id., § 8.18[2]).

Here, the guardian ad litem is unquestionably acting in Mr. Fuller's best interests. Consideration of the interests of other distributees who opted not to participate in these proceedings is of no concern to the guardian ad litem. The Court appreciates the work of the guardian ad litem in this matter, as well as the cooperation of Petitioner's counsel. Together they have crafted a resolution that gives Mr. Fuller the full relief that would be afforded to him if he were successful in challenging the validity of the Will. Indeed, their work will likely result in a greater net share for distribution, because estate assets will not have to be spent defending a Will contest.

The Court's response therefore, to the inquiry by the guardian ad litem is to accept the offer made by Petitioner's counsel and execute paperwork necessary to effectuate such offer. The guardian ad litem however, should caution Mr. Fuller that once the settlement documents are filed, the Court is required pursuant to SCPA § 2222-a to notify the Office of Victim Services that Mr. Fuller is a distributee who will be receiving a share of the estate assets. No payment can be made until 30 days after such notification is given.

This constitutes the Decision of the Court.

Dated: May 2, 2018

Hon. Louis P. Gigliotti, Surrogate