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The issue in this case is whether the surrogate court erred in directing a guardian ad litem to commence a proceeding on his ward’s behalf.


A New York Probate Lawyer said that, in this uncontested probate proceeding, the petitioner, the decedent’s surviving spouse who is the nominated executor, the sole residuary beneficiary and the trustee of the Article SIXTH trust under the offered instrument. Upon motion of petitioner, this matter was transferred to this court by order of the Surrogate’s Court, New York County dated June 26, 2006. The decedent died on March 17, 2006 survived by his wife and his two adult daughters by his prior marriage. One daughter is an incapacitated person who has been deaf, blind and mentally retarded since birth.

A New York Will Lawyer said that, under the propounded instrument the decedent provided for a $500,000 trust for his incapacitated daughter, remainder to her sister or her issue. The will also provides a specific bequest of $1,000,000 to his daughter. According to the application for preliminary letters testamentary, the size of decedent’s gross estate is approximately $52,000,000. The daughter has appeared by counsel in this proceeding and indicated she has no objection to the will.

A Nassau Will Contest Lawyer said that, the guardian ad litem for the incapacitated daughter appointed by this court has filed his report. The guardian ad litem concludes that jurisdiction has been obtained over his ward. The guardian ad litem further concludes that after his investigation of the circumstances of the drafting and execution of the will, that there are no grounds for objecting to the instrument for failure of due execution, no evidence of mental disability or lack of testamentary capacity of this decedent nor any indication of the exercise of undue influence by anyone. Thus, he concludes no basis exists to deny probate to the propounded instrument. However, the guardian ad litem does report to the court concerning a property settlement agreement dated January 20, 1952 between the decedent and his former spouse. The agreement was incorporated into an interlocutory judgment of divorce entered March 3, 1952 in the Los Angeles County Superior Court of the State of California. In pertinent part the agreement provides in paragraph 17 thereof: “17. Husband agrees that he will by testamentary disposition leave not less than one-half of his net estate, after payment of debts and taxes, to his daughters in equal proportions.”

A Nassau County Probate Lawyer, the final judgment of divorce between the decedent and his former wife entered April 7, 1953, makes only some elliptical reference to the agreement. Thus there are questions of the legal effect of the omission of any direct reference to the decedent’s obligation to make certain testamentary dispositions to his children in the final decree. These issues are more properly addressed in a proceeding to enforce or determine his daughter’s rights as a third party beneficiary of the decedent and his former wife Agreement and Final Divorce Decree. The guardian ad litem points out that these issues affect his ward’s rights and she is incapable of adequately protecting her rights under her mother’s agreement with her father.

A Nassau Probate Lawyer said that, after providing a copy of his report, the guardian of the person and property of the incapacitated daughter, the guardian ad litem requests that the court authorize him, or appoint another guardian ad litem, to pursue the incapacitated daughter’s possible entitlement to a one-fourth interest in the decedent’s estate under the California Agreement and Final Decree of Divorce from his former wife. The Court has now received a letter from the incapacitated daughter’s court-appointed co-guardian of the person and property with her father under letters issued by State of New Jersey, Cumberland County Surrogate’s Court dated February 28, 1997. The guardian requests that this court not appoint another guardian ad litem to pursue the incapacitated daughter’s possible entitlements but that this court allow him to retain an attorney of his own choosing to pursue her claim.

The issue in this case is whether the surrogate court erred in directing a guardian ad litem to commence a proceeding on his ward’s behalf.

Whenever a person under disability is a necessary party in a proceeding and does not appear by the guardian of her property the court appoints a guardian ad litem to represent her in that proceeding (SCPA 402). The guardian ad litem’s primary duty is to protect the best interests of his ward (SCPA 404[3]). On the other hand, a guardian ad litem has no duty to protect his ward’s interest outside the scope of the proceeding in which he was appointed. Thus it is not the duty of a guardian ad litem in probate proceedings to delve into matters such as accounting, discovery, construction of the will, etc. that may arise in subsequent proceedings. However if something comes to his attention that may be of concern to his ward, such as the incapacitated daughter’s potential claim, he should report it to the court.

The power of a surrogate to direct a guardian ad litem to commence a proceeding on his ward’s behalf has been questioned. Except for the statutory power of a guardian ad litem to exercise a right of election on behalf of a surviving spouse with court approval (EPTL 5-1.1-A [c][3]), there is no other statute which gives a surrogate power to direct a guardian ad litem to commence a proceeding or perform an act outside of his representation of his ward in a pending proceeding.

In this matter, if a proceeding to enforce the divorce agreement is brought by the daughter or by the guardian of the property of the incapacitated daughter, it will be appropriate to consider the appointment of a guardian ad litem to protect incapacitated daughter’s potential claim (SCPA 402). Similarly, the court would appoint a guardian ad litem who could raise the same issue in an accounting proceeding commenced by the petitioning executor. Accordingly, the court declines to appoint a guardian ad litem to pursue the incapacitated daughter’s possible entitlement to a one-fourth interest in the decedent’s estate. The guardian of her property may take whatever action he deems appropriate.

In all other respects, the court being satisfied as to the genuineness of the will, the validity of its execution, that the testator was competent to make a will and not under any restraint, it is admitted to probate (SCPA 1408). With respect to the issue of attorney fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer’s experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of a 1994 case decision. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee.

Accordingly, the court held that, in this matter the guardian ad litem spent 14.60 hours at his usual hourly rate of $525 for a requested total fee of $7,665. The guardian at litem, besides his usual duties of conferring with petitioner’s counsel and interviewing the attorney/drafter and attesting witness, and preparing his reports in this case, communicated with his ward’s sister’s counsel, reviewed the decedent and his former wife’s Property Settlement, Interlocutory and Final Judgment of Divorce and the California cases concerning the import of the agreement. Considering all the factors set forth above, including the size of the estate, the guardian ad litem’s professional standing and unique additional issue in this case, the fee as requested is approved. Settle decree on notice to counsel of record and the guardian ad litem.

The guardian ad litem’s primary duty is to protect the best interests of his ward. If you wish to apply for the probate of the will of a testator in order to protect the interest of your ward, seek the representation of a Nassau Estate Litigation Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates. Call us.

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