Charles J. Tate, acting as the administrator of the estate of Nicholas C. Tate filed a case for gross negligence, malpractice, non-feasance, misfeasance, malfeasance and breach of fiduciary relationship against John J. McQuade as the guardian ad litem, or the court-appointed guardian of Nicholas’ interest with his son’s will. He is seeking money damages for money and also for punitive damages.
After Nicholas’ son died in March 31, 1971, the court-appointed Mr. McQuade as his guardian because of a disability and Mr. Tate was 90 years old at that time. As the administrator, Mr. Tate says that Mr. McQuade failed to contest the son’s will for excessive gift to charity. Whereby if successful would have increased Nicholas’ share in his son’s estate. The son left some personal property to his mother and the rest of the estate to the University of Detroit for educational purposes. This was dated and verified in September 16, 1971. The mother filed her objections to this will through her own counsel as an excessive gift.
The mother died while the probate for the son’s will was still on-going. Before she died, she had set up a trust for Nicholas her husband, and the rest was to be given to Mr. McQuade as the guardian ad litem. He was also named as the executor of the mother’s will. Though a lawyer, Mr. McQuade was not the one who drafted the mother’s will.
In September 20, 1972 there was a written agreement of settlement by the executor of the son’s estate, the executor of the mother’s estate Mr. McQuade and Mr. Tate as the administrator. This settled the objections to the son’s will and the mother’s will. Part of the settlement was that estate of the father will have a share in the settlement of the contest on the son’s will. They were going to give $25,000 to Nicholas’ estate.
Mr. Tate’s position was that Mr. McQuade did not take the necessary steps to make sure the father gets part of the son’s estate when it clearly showed that the will was to deprive the ward. A Manhattan Estate Lawyer mentioned that Mr. Tate further said that with Mr. McQuade being a beneficiary in the mother’s will and the guardian of Nicholas with the son’s will created a conflict of interest. This was not supported though because the mother had gotten advice from a separate counsel, and the will was drafted by the same lawyer who filed the contest on the son’s will. The father was the only beneficiary of the will. It also does not show that Mr. McQuade knew of what the mother had in mind for her last will and testament because it was only finalized three days before she died by a different lawyer.
Bronx Probate Lawyers said that the court determined from research that duties of the guardian ad litem do not include representation to contest an excessive charitable or educational gift in a probate proceeding of a will. The court also stated that there is no clear rule as to the right of contest when it comes to an incompetent or an infant. It is not specified that a guardian can make the personal choice to do so. It is laudable that a guardian asks the Surrogate court for assistance in the contest but not required. The filing of a contest of an excessive gift can also be done within six months from the issuance of the letters.
The case was dismissed, and the court found that there should be no action to be taken. This may seem like Nicholas got the bad end of a stick. A trustworthy New York Probate Lawyer could have made sure that his interest was covered in both wills. This happens a lot to people when they do not have counsel.
Contact Stephen Bilkis and Associates for advice and guidance. They make sure that once the probate starts you are already in a good position to prevent problems in the future. They give out free consultations when you call 1-800 NY – NY- LAW. Anywhere you are in New York or Long Island, they will assist you.