Posted On: April 4, 2012 by Stephen Bilkis

Court Says it has the Power to Compel Fiduciary to Produce Information

A testator died and his executrix successfully had his will admitted into probate. The executrix had already rendered an accounting of the properties of the estate and she was in the process of litigating claims for and against the estate. She is readying the estate for distribution to the distributees and heirs mentioned in the will.

The executrix was the wife of the testator’s attorney. He was also the same lawyer who drafted the testator’s will. It turns out that the husband of the executrix of the testator’s will had been the legal counsel for the testator for 40 years. The testator signed his will in the presence of the husband of the executrix. It was also uncovered that the lawyer opened a bank account into which the assets of the testator were transferred by the lawyer just before the death of the testator. The lawyer’s wife was named in that bank account as the person to whom the bank account shall be transferred upon the death of the testator. A New York Probate Lawyer said she document that transferred the assets of the testator to the lawyer’s wife was signed by the lawyer as a witness.

For these reasons, the Surrogate’s Court issued a subpoena to the executrix’s husband for him to come to court and bring the documents regarding the opening of the bank account in the name of the testator just before his death; those documents that transferred ownership of the account from the testator to the executrix and all other documents mentioned in the order.
The lawyer resisted the order of the Surrogate’s Court stating that he cannot be summoned to give any evidence in the estate proceedings because he is not a party to the probate proceedings. NY Probate Lawyers also said he also asserts that since the will had already been admitted to probate and there was no more pending petition before the Surrogate’s Court, the Surrogate’s Court has no power to compel him to come to court to bring documents. This is also the very same issue brought before the Supreme Court.

The Supreme Court found that the executrix’s husband was really a fiduciary of the testator even if he was not named as such in the will. He carried out acts which showed that he was really managing the estate of the testator long before the testator had died and in those few days immediately before the testator died.

As the manager of the estate of the testator, he is subject to the Surrogate’s Court. He must be examined and he must give an account of his management of the estate of the testator.
The Surrogate’ Court is well within its powers to compel a fiduciary or estate manager to supply information concerning assets or business transactions of the estate. Even if the lawyer were thought of as a non-party, the Surrogate’s Court can still summon him because the Surrogate’s Court has powers to compel anyone to disclose facts to help in bringing an action. Nassau County Probate Lawyers said it can compel anyone to preserve information that will bring to light the value of the estate or the nature of all of its assets.

In this case, the beneficiaries of the estate had already expressed a desire to bring an action to remove the executrix if they are able to find proof that the executrix and her husband connived to hide and divert the assets of the testator’s estate.

The Surrogate’s Court did not exceed its power when it issued orders to the lawyer to appear in court and bring those documents because the documents he was called upon to produce are material and relevant to the administration of the estate of the testator.

Any distribute or beneficiary of a will can bring a case against the executor of a will for wrongful management of the assets of the testator’s assets. New York Estate Litigation attorneys can present proof to show that the executor failed in his trust to truthfully render an accounting of all the assets of the estate. Our legal team can bring suit against an executor for failing to preserve the assets until they are delivered to the beneficiaries of the will. Call Stephen Bilkis and Associates and speak to any of their New York Litigation lawyers today.