Matter of Ross

[*1] Matter of Ross 2019 NY Slip Op 50664(U) Decided on May 6, 2019 Surrogate's Court, Sullivan County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2019
Surrogate's Court, Sullivan County

In the Matter of the Probate Proceeding, Estate of James Patrick Stewart Ross, Deceased.



2018-110



John V. Janusas, Esq., 184 North Main Street, Liberty, NY 12754, Attorney Executor and Petitioner

Drew, Davidoff & Edwards Law Offices, LLP, 13 Liberty Street, PO Drawer 1040, Monticello, NY 12701, Michael Davidoff, Esq., of counsel, Attorney for Deborah Ross, Sarah Ross, and Harry Beach Ross, II, beneficiaries

Attorney General of the State of New York, The Capitol, Albany, NY 12224, Jennifer L. Allinson, Asst. Atty. General, Attorney for the New York State Attorney General on behalf of the charitable beneficiaries

Bruce Perlmutter, Esq., 51 Broadway, PO Box 425, Woodridge, NY 12789, Guardian Ad Litem for A.R., daughter of Decedent

Rusk, Wadlin, Heppner & Martuscello, LLP, 255 Fair Street, PO Box 3356, Kingston, NY 12402, Jason J. Kovacs, Esq., Guardian Ad Litem for C.R., son of Decedent
Frank J. LaBuda, J.

This matter comes before the Court by way of the Notice of Motion for Permission to Withdraw Waivers and File Objections with Supporting Affidavits filed on behalf of Deborah Ross, Sarah Ross, and Harry Beach Ross, II, the siblings of the Decedent and beneficiaries under the Will. This application also requests the termination of the appointment of the Guardians Ad Litem for A.R. and C.R., the children of the Decedent. The Attorney General of the State of New York filed an Affidavit of Support. Mr. Perlmutter, Guardian Ad Litem for A.R., filed Objections to Probate and Demand for Trial by Jury. Mr. Kovacs, Guardian Ad Litem for C.R., filed an Initial Report of Guardian Ad Litem and Objections to Probate.[FN1]

The record before this Court indicates that the Decedent died on July 21, 2017, in Liberty, Sullivan County, New York. The Decedent was survived by his two (2) children, A.R., born in 1995 (aged 22 years old on Decedent's date of death), and C.R., born in 1999 (aged 17 years old on Decedent's date of death) (hereinafter the "Decedent's Children"). The Decedent's Children are not named in the Will. The Decedent is also survived by three (3) siblings- Deborah Ross, [*2]Sarah Ross, and Harry Beach Ross, II (hereinafter the "Decedent's Siblings"), all of whom are named as beneficiaries in the Will.

As relevant herein, the Will bequeaths to each of the Decedent's Siblings a thirty (30%) percent share each of the Estate, as well as any real property owned by the Decedent at the time of his death. The Will further bequeaths $20,000.00 to the Decedent's former secretary, all of his books to the Wong Kak Sa Korean Buddhist Temple, manuscripts to the American Burmese Buddhist Association, and ten (10%) percent of the Estate monies plus any residuary estate to the American Indian College Fund. Neither of the Decedent's Children are named nor expressly excluded in the Will.[FN2]

In the Will, the Decedent appoints John V. Janusas, the attorney who drafted the Will, as Executor to be compensated by the Estate according to the rates of statutory commission. In the event Attorney Janusas is unwilling or unable to serve, the Will states that Decedent's Siblings would decide amongst themselves which of them would serve as Alternate Executor/Executrix. The Decedent's Siblings previously executed Waivers and Consents to Probate in February of 2018 which were also drafted by the Will's draftsman, Attorney Janusas. The Probate Petition was filed with this Court by Attorney Janusas on May 11, 2018.

The Decedent's Siblings with their attorneys, and the Decedent's Children with their Guardians Ad Litem[FN3] appeared before this Court on August 9, 2018. Jurisdiction was established and Letters Testamentary were not issued because this Court was advised on the record that the Decedent's Siblings would be filing the underlying Notice of Motion for permission to withdraw their Waivers and Consent to Probate and to file limited Objections. At this time, there has been no entry of a Probate Decree.

The Decedent's Siblings now move to withdraw their Waivers and Consents and seek permission to file Objections for the limited purpose of seeking the removal of Attorney Janusas as Executor and issuing Letters Testamentary to Deborah Ross. The Decedent's Siblings argue that they did not fully understand, nor were they advised by Executor-Attorney Janusas, the consequences of their Waivers and Consents, that Attorney Janusas had a minimal professional relationship with the Decedent, and that Deborah Ross will be able to expedite the Probate process based upon her knowledge of the Decedent's Estate. The Decedent's Siblings further seek the termination of the appointments of Guardians Ad Litem for A.R. and C.R., as both children are over the age of 18 and do not suffer from any disability.

The Attorney General for the State of New York filed an Affidavit in Support of the [*3]application made by the Decedent's Siblings on behalf of the several charitable beneficiaries of the Will. In support of seeking permission to file objections, the Attorney General states that the written acknowledgment of disclosure as drafted by Attorney Janusas and executed by the Decedent pursuant to SCPA §2307-a is insufficient, as it does not contain all four of the disclosure statements required. Such failure to include the requisite disclosure statements limits Attorney Janusas to one-half (½) of the statutory commission. The Attorney General further argues that in light of the fact that the professional relationship between Attorney Janusas and the Decedent was minimal and non-existent outside of the drafting of the Will, this Court should inquire as to the circumstances surrounding the appointment of Attorney Janusas as a compensated Executor. Lastly, the Attorney General joins in the request for the termination of the appointment of Guardians Ad Litem for the Decedent's Children based on the fact that the children are over the age of 18 and do not have a disability.

A.R., through her Guardian Ad Litem, filed Objections to Probate and Demand for Jury Trial. Ms. Ross' Objections allege that the Decedent's alleged signature on the Will is not the Decedent's signature, that the Will was not duly executed by the Decedent, that the Decedent was not competent to make the Will as he was not of sound mind and memory at the time of execution, and that the Will was procured by fraud and undue influence practiced upon the Decedent by the Decedent's Siblings and/or others acting in concert or privity with them. No response to the underlying Notice of Motion or the Attorney General's Affidavit in Support was provided.

C.R., through his prior Guardian Ad Litem[FN4] , filed Objections to Probate. His current Guardian Ad Litem, Mr. Kovacs, joined in these Objections to Probate and filed an Initial Report of Guardian Ad Litem. In his Report, Mr. Kovacs objects to the termination of the appointment of Guardians Ad Litem for the Decedent's Children, arguing that the Surrogate Court has the inherent power to appoint Guardians Ad Litem within its role as "parens patriae" in order to protect the best interest of the Decedent's Children. Though grounded in the Common Law, Mr. Kovacs argues that New York courts have utilized their "parens patriae" power where the interests of children are subjects of disputes and cannot be adequately represented by their parents or where an investigation by independent counsel for the children can assist the court in determining the children's best interests. Mr. Kovacs further contends that C.R. is entitled to certain specified exempt assets of the Decedent's Estate pursuant to EPTL §5-3.1 and requests that C.R. receive same.

The Surrogate's Court is a court of special jurisdiction founded in the Constitution of the State of New York. As set forth in Article 6, Section 12(d) of the Constitution of the State of New York, "The surrogate's court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto, guardianship of the property of minors, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law." See generally, In re Estate of Mastroianni, 105 AD3d 1136 (3d Dept 2013); Matter of Estate of Van Dorn, 225 AD2d 969 (3d Dept 1996). Further, the Surrogate's Court [*4]"shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires." SCPA §201(3) [emphasis added].

If the proceeding falls within the Surrogate's Court's jurisdiction, the Surrogate's Court has broad authority in law and in equity to resolve all of the issues raised within the proceeding. In re Estate of Dicosimo, 180 Misc 2d 89 (Sup Ct 1999). Under its general equitable powers, the Surrogate's Court "may directly grant any relief it could grant incidental to another statutory proceeding and it has the power to determine all matters both legal and equitable necessary to the settlement of the decedent's estate." Matter of Estate of Garofalo, 141 AD2d 899 (3d Dept 1988). See also, Matter of Baby Boy C., 84 NY2d 91 (Ct App 1994) [holding "The Surrogate's Court has full equity powers in matters over which it has jurisdiction"].

Pursuant to SCPA §1408, this Court must inquire into all relevant facts and circumstances surrounding the genuineness and validity of the execution of a will before admitting same to probate. "The Surrogate's Court may grant an application to withdraw a waiver and consent to probate if the movant demonstrates some merit to the objection to probate and a reasonable probability of success." In re Orlowski, 281 AD2d 422 (2d Dept 2001). See also, In re Kornicki, 101 AD3d 722 (2d Dept 2012). As set forth by the Court of Appeals in In re Frutiger's Estate, 29 NY2d 143 (Ct App 1971):

The rule has been succinctly stated thus: The court has control over stipulations and power to relieve from the terms thereof when the parties can be placed in statu quo. But the stipulation will not be destroyed without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature... It is sufficient if it appear that either party has inadvertently, unadvisably, or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice. Where both parties can be restored to substantially their former position the court, as a general rule, exercises such power if it appears that the stipulation was entered into inadvisedly, or that it would be inequitable to hold the parties to it.

(internal citations removed). See also, In re Estate of Bono, 29 Misc 3d 1211(A) (Sup Ct 2010).

Thus, this Court may exercise its discretion in permitting the withdrawal of the Waivers and Consents to Probate, as no Probate Decree has yet been entered and the matter is still pending before this Court. Permitting the withdrawal of the Waivers and Consents to Probate in this proceeding will not prejudice any party and will essentially restore them to status quo. It further appears that issues of fact and of law exist surrounding the drafting and execution of the Will. One issue is the fact that the written acknowledgment of disclosure that was executed by the Decedent regarding Attorney Janusas acting as a compensated Executor of the Decedent's Will appears insufficient as a matter of law pursuant to SCPA §2307-a. Also, as neither the Decedent's Siblings as beneficiaries under the Will nor the Decedent's Children object to this [*5]relief, this Court will grant the request of the Decedent's Siblings for the immediate withdrawal of the Waivers and Consents to Probate, and allow the Decedent's Siblings and the Attorney General to file their objections forthwith.

With regards to the termination of the Guardians Ad Litem for the Decedent's Children, such application is denied. There are several issues worthy of Surrogate review. There is the appearance of impropriety as to why the Decedent's Children— one of whom was only 17 years old at the time of the Decedent's Death— were neither mentioned nor expressly excluded from the Will. The Decedent's Children would be the normal and expected beneficiaries of the Decedent's generosity and this disinheritance by the Decedent is unexplained. Additionally, the Decedent had the responsibility to support his children until they reached the age of 21 years or until the time of his death pursuant to Family Court Act §413 and Domestic Relations Law §236B.

It is this Court's responsibility to ensure that the Decedent's Children, and C.R. particularly, have fair and adequate representation during these Estate proceedings, especially considering that C.R. is still under the age of majority for child support purposes. While this Court is aware that the Decedent and the mother of the Decedent's Children were divorced at the time of his death, the terms of the Decedent's child support responsibility— and whether the Decedent was required to maintain a life insurance policy naming his Children as the beneficiaries— pursuant to the divorce are unknown and need to be further investigated.

Surrogate's Court Procedure Act §103(25) defines an incapacitated person as "any person who for any cause is incapable adequately to protect his or her rights..." [emphasis added]. The Decedent's Children, although having reached the age of majority for infancy/Guardian Ad Litem purposes at 23 and 20 years old respectively, are not financially able to retain their own counsel to protect their interests in the Estate. Considering their potential rights and statuses as Interested Persons in the Decedent's Estate, the Decedent's Children require adequate representation in this matter but are financially incapable of retaining attorneys to represent them. It is this Court's understanding that both children are full-time college students, are not employed full-time, and are not self-supporting. There is nothing in the Surrogate's Court Procedure Act or in case law that limits this Court from expanding the definition of "disability" or "incapacitated person," and appointing Guardians Ad Litem to ensure that the potential interests of the Decedent's Children in his Estate are protected pending a final determination of the matter, particularly where the interests of the Decedent's Siblings and other beneficiaries under the Will are adverse to the interests of the Decedent's Children. See, In re Estate of Garrasi, 91 AD3d 1085 (3d Dept 2012).

Additionally, Surrogate's Court Procedure Act §103(27) also defines an infant for the purposes of the appointment of a guardian as "a person who is under the age of twenty-one years who consents to the appointment of a guardian after the age of eighteen." C.R., being only 20 years old, has not objected to this Court's appointment of a Guardian Ad Litem to represent him. It is also readily apparent to this Court that C.R. is entitled to specific exempt assets of the Decedent's Estate pursuant to EPTL §5-3.1, due to his infancy at the time of the Decedent's Death and this raises yet another issue of the competency and sufficiency of the Will.

Out of an abundance of caution and because of the issues and circumstances of the drafting of the Will, this Court finds an independent investigation on behalf of the Decedent's Children is warranted. Hence, this Court will continue the appointments of Mr. Perlmutter and [*6]Mr. Kovacs as Guardians Ad Litem under the doctrine of "parens patriae" and its application by New York courts, as well as the Surrogate's inherent powers to equitably administer justice to orphans and widows as provided for by the Constitution of the State of New York and the Surrogate's Court Procedure Act. See, Finlay v. Finlay, 240 NY 429 (Ct App 1925); Braiman v. Braiman, 44 NY2d 584 (Ct App 1978); Barry E. (Anonymous) v. Ingraham, 43 NY2d 87 (Ct App 1977); SCPA §201(3); NY Const art. VI, § 12.

This Court shall consider the Objections filed by the Guardians Ad Litem of the Decedent's Children as well as any Objections filed by the Decedent's Siblings and the Attorney General. Both Guardians Ad Litem shall have leave to file supplemental or amended Objections, as appropriate. Because C.R. was only 17 at the time of the Decedent's death, he also qualifies for the Exemption for Benefit of Family under EPTL §5-3.1(a) and may obtain counsel of his own choosing, and that counsel may file an application for reasonable attorneys fees to be paid by the Estate.

Under EPTL §5-3.1(a), C.R. is entitled to certain items and monies of the Decedent's Estate, despite being disinherited under the Will. As such, this Court sua sponte directs that Attorney Janusas and the Decedent's Siblings provide an itemized accounting of any monies and/or personal property that have been gifted, bequeathed, transferred, or otherwise disposed of subsequent to the Decedent's death, as the Affidavit of Deborah Ross states that items have already been removed from the Decedent's residence. This Court further directs that no further personal property items and/or monies be gifted, transferred, bequeathed, disposed, or otherwise removed from the Estate and/or its control without further Order of this Court.

Based on the foregoing, it is

ORDERED that permission to withdraw the aforesaid Waivers and Consent to Probate signed by the Decedent's Siblings and for permission to file objections to the probate of the Last Will and Testament of the Decedent, dated November 2, 2016, be and the same hereby is in all respects granted; and it is further

ORDERED that the request to terminate the appointments of Bruce Perlmutter, Esq. and Jason J. Kovacs, Esq. as Guardians Ad Litem is hereby denied; and it is further

ORDERED that Attorney Janusas and the Decedent's Siblings submit an itemized accounting of any monies and/or personal property that have been gifted, bequeathed, transferred, or otherwise disposed of subsequent to the Decedent's death to this Court within thirty (30) days of the date of this Decision and Order; and it is further

ORDERED that no further personal property items, monies, and/or anything of value shall be gifted, transferred, bequeathed, disposed, or otherwise removed from the Estate and/or its control without further Order of this Court.

This shall constitute the Decision and Order of this Court.

DATED: May 6, 2019

Monticello, New York

____________________________________

HON. FRANK J. LaBUDA

Sullivan County Court Judge and

Acting Surrogate Footnotes

Footnote 1: Kamal I. Alagh, Esq., the prior Guardian Ad Litem for C.R., filed Objections to Probate, in which Mr. Kovacs joined.

Footnote 2: The Record before this Court indicates that the children's mother, Susie Forbes-Ross, and the Decedent were divorced on June 24, 2014. A.R., born in 1995, and C.R., born in 1999, are the only children of the Decedent.

Footnote 3: This Court first appointed Kamal I. Alagh, Esq. to represent C.R. by Order dated August 3, 2018, and Bruce Perlmutter, Esq. to represent A.R. by Order dated August 7, 2018 pursuant to SCPA §403. The ages and birth dates of the Decedent's Children were unknown, so Guardians Ad Litem were appointed out of an abundance of caution due to the Court's knowledge that the Decedent's children were not named as beneficiaries nor expressly excluded in the Decedent's Will.

Footnote 4: Mr. Alagh, C.R.'s initial Guardian Ad Litem, was relieved due to personal illness and Mr. Kovacs was appointed as substitute Guardian Ad Litem.