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Respondent Appeals Attorney’s Fee Provision


In a probate proceeding, Respondent appeals from so much of an order of the Surrogate’s Court, dated April 13, 2005, as, upon its application to fix an attorney’s fee, fixed its fee at the principal sum of $109,620, inclusive of reimbursement of a handwriting expert’s fee of $60,884, and directed the petitioner to refund to Plaintiff the sum of $25,391, and the latter cross-appeals from so much of the same order as partially dismissed her counterclaim, in effect, to reduce the sum owed as reimbursement to the petitioner for the handwriting expert’s fee.The order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof awarding the petitioner attorney and expert fees in the sum of $109,620 and substituting therefor a provision awarding the petitioner attorney and expert fees in the sum of $58,736, and (2) deleting the provision thereof directing the petitioner to reimburse the respondent the sum of $25,391, and substituting therefor a provision directing the petitioner to reimburse the respondent the sum of $76,275; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

It is settled that the determination of a reasonable attorney’s fee in a matter concerning an estate lies within the sound discretion of the Surrogate’s Court. Where, as here, a dispute arises over the terms of a retainer agreement, the responsibility of interpreting the agreement rests with the Surrogate’s Court. In cases of doubt and ambiguity, an agreement between a client and the attorney must be construed most favorably to the client. Here, the Surrogate’s Court properly construed the subject retainer agreement between the petitioner and the respondent.

However, Respondent is correct that the amount of $60,884 which was included in the principal sum awarded to her as reimbursement for the handwriting expert’s fee was excessive and unreasonable. In our opinion, the appropriate and reasonable amount for the services of the handwriting expert under the facts and circumstances of this case should have been $10,000. Thus, the total award to her should have been $58,736. Since it has already paid $135,011 to respondent, she is entitled to be reimbursed the sum of $76,275.

A Motion on an appeal from an order of the Surrogate’s Court, Kings County, dated April 13, 2005, inter alia, to strike pages 228-307 and 318 from the record on appeal on the ground that the material contained therein is dehors the record, and to strike stated portions of the brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated February 10, 2006, those branches of the motion were referred to the panel of Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is Ordered that the branches of the motion which are to strike pages 228-307 and 318 from the record on appeal and to strike stated portions of the brief of Seth Rubenstein, P.C., are granted, and those portions of the record and brief have not been considered on the appeal.

In another estate case, the Court is satisfied on all the proof that the decedent executed the propounded instrument in conformity with the provisions of Decedent Estate Law, § 21, and that at its execution she was of sound mind, free from restraint and fully competent to make a will.

An irregularity appears on the first page of the instrument in that paragraph ‘First’ is followed by paragraph ‘Third’ with the page cut across horizontally between the two paragraphs and held together by transparent adhesive tape, thereby rendering this page about an inch shorter than the second page of the instrument. The proponent has filed a conformed carbon copy of the instrument obtained from his attorney’s files and the attorney-draftsman testified that it was an exact copy of the original, as executed. The first page of this copy contains paragraph ‘Second’ in which the proponent is given a legacy of $1,000. It is obvious that paragraph ‘Second’ was excised from the propounded instrument.

The Court is satisfied on all the evidence that at the time the propounded instrument was executed it contained said paragraph ‘Second’ and was thereafter retained by decedent until her death. The partial revocation attempted by the excision of said paragraph is ineffectual since the formalities required by Decedent Estate Law, § 34, were not followed. The will must therefore stand as originally executed.

The propounded instrument is entitled to probate in its original form as the will of the decedent. The decree should incorporate the instrument as thus admitted. Submit decree accordingly.

Here in Stephen Bilkis and Associates, our attorneys are here to assist you in drafting a last will and testament. This is to ensure that the dispositions contained therein are allowed by law.

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