Published on:

Court Decides if Objections to Guardian Ad Litem Report Should be Granted


A New York Probate Lawyer said that, in this probate proceeding, the decedent was survived by her husband and her three adult children. The propounded instrument nominates all three sons as co-executors and bequeaths the entire estate to them, to the exclusion of her husband. The decedent’s husband is a person under disability and a guardian ad litem was appointed to represent his interests in this proceeding. Although no objections were filed, settlement negotiations between the guardian ad litem and the three brothers proceeded for some time without success. Ultimately, the guardian ad litem filed his report wherein he indicates that he has no objection to the will’s admission to probate, but seeks the court’s permission to file a notice of election on behalf of his ward. He also opines that due to the hostility displayed by the brothers against one another, the best interests of the estate administration would be served by the appointment of an independent party to administer the estate.

A New York Will Lawyer said that, the third son has not filed any objection to the recommendations made by the guardian ad litem. The court notes that he has been living in the decedent’s former residence at least since the time of the decedent’s death, and by his own admission has been living there without either heat or electricity for many months. His suitability as a fiduciary is therefore greatly suspect.

A Westchester County Probate Lawyers said that, the first son, an attorney, has filed objections to the report of the guardian ad litem in which he threatens to immediately commence a Supreme Court action to block the appointment of an independent fiduciary, asserting he will “not stand idly by while some two-bit money hungry shyster is appointed to serve as Executor instead of your affirmant and/or your brothers’.” He also threatens to move for a change of venue, fearing a conspiracy exists between the court and the second son’s attorney based on the fact that the latter’s attorney, as a law student, served as an intern in this court during the summer of 1996. The court also notes that at the last conference on July 21, 2010, the first son had to be removed from the court’s conference room by a court officer because of his extremely abusive and hostile manner directed toward his siblings and the second son’s attorney.

Suffolk County Probate Lawyers said the issue in this case is whether the first son’s objections to the report of the guardian ad litem should be granted.

The court said that the first son does makes a meaningful argument, however, which is echoed by the second son’s attorney, in opposition to the guardian ad litem’s request for permission to file a notice of election on behalf of his ward. The decedent’s husband is evidently quite disabled. The parties and the guardian ad litem also seem to agree that there is a substantial money judgment against the husband which remains unsatisfied. As a veteran and a resident at the New York State Veteran’s Nursing Home in Jamaica, New York, all of his needs are met by the Veteran’s Administration and, unlike benefits provided by Medicaid, there is no requirement to repay the Veteran’s Administration for those benefits. Although not entirely clear from the papers, it appears that all or most of any elective share recovery would be subject to the claim of his judgment creditor. Often, one of the criteria used to determine whether to permit a guardian ad litem to file a notice of election on behalf of the ward is whether the ward would have exercised the right of election on his own behalf, were he competent to do so. Here, it appears unlikely that he would exercise his right of election which would have the effect of paying a creditor rather than permitting the estate to be distributed to his own sons, particularly where the failure to elect will have no impact on his eligibility for the benefits he is receiving and the election is not likely to effect his quality of life. The guardian ad litem’s request for permission to file a notice of election on behalf of his ward, while clearly made with the best of intentions, is therefore denied.

Accordingly, there being no objection to the will’s admission to probate and the court being satisfied of its genuineness and validity (SCPA 1408), the propounded instrument will be admitted to probate.

While the court recognizes the fact that all three of the decedent’s sons are nominated as executors and that a testator’s choice of executor is generally to be given great deference, nevertheless, the court has the power to deny letters to one otherwise entitled thereto where the hostility exhibited between siblings is so great as to effect the proper and efficient administration of the estate. Here, while the second son has been the object of hostility, especially from the first son, he has not exhibited any toward his brothers. And, as noted above, in the first son’s objection to the guardian ad litem’s recommendation to appoint an independent fiduciary, the first son indicated that he would oppose the appointment of anyone other than himself “and/his brothers ” which is at least some indication that he would accede to the appointment of either of his brothers as sole executor, but not to the appointment of an outsider.

Under the circumstances, upon the will’s admission to probate, letters testamentary shall issue solely to the second son. Finally, the court has reviewed the affirmation of legal services submitted by the guardian ad litem appointed to represent the interests of the decedent’s surviving spouse. The guardian ad litem avers that he spent 19.5 hours on this proceeding and that his customary billing rate is $350.00 per hour. The court is aware that the guardian ad litem expended substantial effort in trying to resolve this matter in the best interests of his wards but that his efforts were ultimately frustrated by the siblings inability to agree on the terms of a settlement. The court is aware that 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. Furthermore, these criteria apply equally to the services of a guardian ad litem.

Accordingly, the court said that considering all of the foregoing, the court fixes the fee of the guardian ad litem in the sum of $6,825.00, which shall be paid within thirty (30) days after entry of the decree or after the executor’s sufficient estate assets, whichever is later.

If the appointment of a guardian ad litem is no longer necessary in a probate proceeding, seek the representation of a Nassau Estate Litigation Attorney and/or Nassau Probate Attorney at Stephen Bilkis and Associates in order to question the authority of the guard ad litem.

Contact Information