On 11 March 2011, a decedent died testate at the age of 91. She was survived by one child. Under her will dated 18 November 2010, decedent gave her personal property to her child, $6,000 to Children International, $10,000 to another individual, the proceeds of an insurance policy to a trust created for the benefit of her two grandchildren, her child’s children, and disposed of her residuary estate in three shares, as follows: one share to the trust for the grandchildren; and the other two shares to a supplemental needs trust for the benefit of her child. A lawyer (“the Lawyer”) is the nominated executor and trustee.
Following decedent’s death, the lawyer filed a probate petition as a start of estate administration. The surviving child of the decedent is a person under a disability, having suffered severe strokes in September, 2010. Because the child’s interest is greater in intestacy, a guardian ad litem (“the GAL”) was appointed for her in this proceeding. Preliminary letters testamentary have issued to the lawyer.
The lawyer has represented members of the decedent’s family for over 20 years during which time he was either a partner or of counsel to the firm. A New York Probate Lawyer said the lawyer has drafted wills for the decedent’s predeceased husband and handled his estate. He is named as an attorney-in-fact under a power of attorney the decedent executed on 30 March 2006. Since decedent’s death, the lawyer, and/or an employee of the firm, has assisted the decedent with her finances. The firm represents the lawyer in the instant proceeding.
In early August, 2010, the decedent fell and broke her hip. Thereafter, the decedent was either hospitalized, lived in a nursing home or in an assisted living residence. During this time, the decedent consulted the lawyer about her estate plan. A Manhattan Probate Lawyer said a partner (“the Partner”) with the firm, suggested that decedent create a supplemental needs trust for the decedent’s benefit. The lawyer states that decedent agreed with that advice. The partner then drafted the propounded will which was executed under his supervision and witnessed by employees of the firm.
Following his appointment, the GAL conducted examinations under SCPA 1404 and then filed objections to probate. The GAL contends that, by creating a supplemental needs trust, the decedent effectively disinherited her child. He has sought certain disclosure including decedent’s prior wills and requested HIPPA authorizations from proponent to enable him to obtain decedent’s medical records. Westchester County Probate Lawyers said it appears from the record that discovery has not proceeded smoothly. These motions followed with each side accusing the other of unprofessional conduct.
The GAL moves to disqualify the firm on three grounds: i) conflict of interest; ii) the appearance of impropriety; and iii) the attorney witness rule. While the GAL cites the former disciplinary rules as the bases for disqualification, each of the asserted grounds is embodied in an analog rule under the Rules of Professional Conduct.
Thereafter, the lawyer cross-moves to terminate the appointment of the GAL.
In sum, Bronx Probate Lawyer said the incident to the contested probate proceeding are two motions: i) by the GAL to disqualify proponent’s counsel on several grounds including a conflict with his ward, as mentioned above; and ii) by proponent’s counsel, a cross-motion to terminate the appointment of the GAL.
The disqualification of an attorney is a matter that rests within the sound discretion of the court. Consideration is given to competing concerns, the avoidance of even the appearance of impropriety against the right of a party to the attorney of his own choosing, and to the possibility that the motion may be used for some strategic advantage. The rule has been held and interpreted to impose a higher standard for conflicts of interest as compared to the earlier disciplinary rules.
Here, the lawyer states that the firm represented the decedent in the past and currently provides her with financial management assistance. Yet, the decedent is clearly adversely affected by the relief requested in the probate proceeding which is the very reason for the GAL’s appointment. The possibility of conflicting loyalties, which the rule seeks to prevent, is apparent here.
Thus, the motion to disqualify the firm from representing the lawyer in the proceeding is granted.
On the cross-motion to terminate the services of the GAL:
The lawyer takes exception with the GAL’s actions. According to the partner, following the 1404 examinations, the GAL indicated that he was satisfied that the will was valid but had concerns about the estate plan. While the GAL has expressed in his papers dissatisfaction with the disposition to his client under the propounded will, the record does not demonstrate that he lacks sufficient objectivity to be removed.
The sole question in the probate proceeding is whether the propounded instrument is valid. It is not for the court, nor the GAL, to decide how decedent should have disposed of her property. In that regard, the court is mindful that the interests of the beneficiaries could be reduced by potentially needless litigation (estate litigation). For that reason, the GAL shall file an interim report within 10 days of the retention of new counsel as provided herein. In his report, the GAL shall report his findings and identify any further discovery he seeking. Accordingly, the cross-motion is denied without prejudice to renew following Mr. Headley’s retention of new counsel and the GAL filing his interim report.
The probate proceeding is stayed for 30 days from the date of this decision to enable Mr. Headley to retain new counsel. Counsel shall appear before the court on February 15, 2012 at 9:30 AM to establish a new discovery order.
A competent and determined legal professional at Stephen Bilkis & Associates can help you with your legal needs. The firm offers the services of its lawyers through their free legal consultations. Contact the firm and talk to a Kings County Estate Litigation Attorney or a Kings County Probate Attorney, etc.