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Petitioner Moves to Amend Final Accounting


Probate Lawyers said that in this contested accounting proceeding, the petitioner moves for an order permitting him to amend the final accounting to include trustee’s commissions to which he alleges he is entitled. Respondent opposes the motion. For the reasons that follow, the motion is granted

A Kings County Estate lawyer said that the decedent died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent’s two daughters and his grandson as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent’s two daughters and the decedent’s spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent’s grandchildren. On the other hand, the Oppositor fled objections to the account.

An Estate Lawyer said that according to his attorney, the co-executor is seeking leave to amend the account to include two-thirds trustee’s commissions chargeable to principal due to co-executor for the period of the account as shown on the amended affidavit sworn to on June 17, 2009. The total amount of these commissions is claimed to be $183,602.00.

The oppositor’s counsel correctly points out that the co-executor’s moving papers do not contain a copy of the proposed amended petition as is required in a motion made pursuant to CPLR 3025 (b) regarding amendments to pleadings with leave of court. However, it is this court’s practice to allow petitions for accountings to be amended by affidavit, and a copy of the amended affidavit amending accounting is annexed to the co-executor’s moving papers. The affidavit provides the oppositor with all of the pertinent information that would be contained in an amended petition.

“Motions for leave to amend pleadings should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient”. Neither is the case here. The fact that the co-executor did not ask for the commissions at issue in the petition or account does not constitute a waiver of them. “A waiver is an intentional abandonment or relinquishment of a known right. It is essentially a matter of intention. Negligence, oversight or thoughtlessness does not create it”. Even if the co-executors were deemed to have voluntarily waived these commissions, such a waiver may be withdrawn.

Long Island Probate Lawyers said that the oppositor’s attorney also argues that the motion to amend should be denied because the co-executor did not include an affidavit by anyone with knowledge of the facts. The oppositor even asserts that the co-executor did not provide an affidavit because he waived annual trustee’s commissions in an agreement of receipt and release that the co-executor executed on November 15, 2006. Annexed to the oppositor’s papers in opposition to the motion is a copy of an agreement of receipt and release executed by the co-executor on November 15, 2006.

Queens Probate Attorneys said that paragraph 4 of the agreement states, “The Executors and Trustees waive all executor and trustees fees for the Accounting Period except for the executors fees paid to the lawyer as set forth in the Accounting.” The copy of the agreement is signed by the co-executor, as executor, trustee and remainderman, and by another of the accounting parties, the income beneficiary, executor and trustee. However, the copy is not signed by the other co-executors specifically avers that he never signed the agreement.

The agreement states that it is made to settle the account without the need for a formal judicial proceeding. Since not all of the interested parties signed the agreement, the co-executor and his co-trustees had to commence a proceeding to have the account judicially settled, and when they did, the Oppositor filed objections to its settlement. Under these circumstances, his argument that the co-executor should be held to the terms of the agreement for which he received no consideration is unavailing.

The Objectant/oppositor also asserts that the co-executor is not entitled to seek trustee’s commissions because he failed to provide to the beneficiaries on an annual basis the statement required by SCPA 2309 (4), and the objectant has filed an affidavit from the other executors that states that she never received annual statements from Bruce or from any other person in connection with the subject trust. However, the co-executor is not seeking the commissions chargeable to the income beneficiaries’ income interest.

Finally, the objectant argues that the court should exercise its equitable powers and estop the co-executor from seeking receiving trustee’s commissions The court finds no basis upon which to estop the co-executor from seeking commissions on a motion to amend.

Supplemental citation to issue or additional waivers must be filed with specific reference to the claim for commissions. This constitutes the decision and order of the court.

If a last will and testament was brought to the court for probate and you are a party in interest, whose rights was deprived because of its execution, our Kings County Will Contest Attorneys here in Stephen Bilkis and Associates will represent you before the court and file your opposition. On the other hand, if you seek to draft your last will and testament, our Kings County Estate Lawyers will draft the same for you.

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