This is a reverse discovery proceeding under Surrogate Court Procedure Act

§ 2105 (1). Claimants Eugene and Judy Brushaber and James and Judith Oakes, who are not related by blood to decedent Carol Dudley but are nieces and nephews of her deceased husband, have alleged that James Sommer, the attorney for decedent, utilized his power of attorney to wrongfully terminate bank accounts decedent held in trust for claimants. Claimants therefore seek to have the value of these "in trust for" (ITF) accounts restored to them.

The facts discussed below come from affidavits submitted by the estate. Because there are factual contentions raised in the estate's affidavits that are not contradicted by the claimants, the contentions are accepted as true (see People v. Gruden, 42 NY2d 214, 397 NYS2d 704 [1977]; Omahen v. Omahen, 309 AD2d 1019, 766 NYS2d 152 [3d Dept 2003]; O'Hanlon v. Cornelius, 213 AD2d 406, 624 NYS2d 876 [2d Dept 1995]; Strauss v. Ingber, 208 AD2d 608, 617 NYS2d 334 [2d Dept 1994]; Klagsburn v. Klagsburn, 192 AD2d 306, 595 NYS2d 456 [1st Dept 1993]).

Stewart and Carol Dudley resided in Chautauqua County for many years. Thomas Urbanek had been their accountant since 1975. Stewart Dudley died in 1985 but Urbanek continued to meet with Mrs. Dudley quarterly to help manage her business affairs.

In February 1999, Mrs. Dudley met with attorney Teddar Brooks to review her estate plan. On March 3, 1999, Mr. Brooks wrote Mrs. Dudley to review their conference and make recommendations. Among the many items Mr. Brooks reviewed with Mrs. Dudley was a bequest to the Brushabers of $73,500 and Mrs. Dudley's desire to leave a large bequest to charity.

By 2000, Mr. Urbanek had become concerned that Mrs. Dudley's investments were "all over the place." She had numerous mutual fund accounts with various institutions and ITF accounts for several people, including the claimants. The Brushabers were beneficiaries of a $70,000 ITF account while the Oakeses were beneficiaries of a $35,000 ITF account. Urbanek suggested to Mrs. Dudley that she meet with a financial planner and organize or consolidate the various accounts. Mrs. Dudley agreed and Urbanek introduced her to Klager Associates Financial Services, a firm affiliated with Advest, Inc.

Mrs. Dudley initially met with Urbanek, William Klager and William Gilmour, although it was Gilmour who thereafter handled her financial matters. At Mrs. Dudley's direction, the ITF accounts were liquidated and the funds transferred to investment accounts. Mrs. Dudley and Mr. Gilmour apparently discussed using testamentary bequests to replace the ITF accounts because on July 18, 2002, Gilmour wrote Mrs. Dudley and explained that the ITF accounts had been eliminated and her lawyer might recommend that she redo her will. Included with that letter was a list of what various beneficiaries would have received under the now-closed ITF accounts and what they would receive under her existing will, which had been executed on November 8, 2001.

Mrs. Dudley and Mr. Urbanek met with James Sommer, who had been the Dudleys' attorney for many years. He had drafted wills for Mrs. Dudley in 1972, 1986, 1994, 1998, 1999 [*2]and 2001. On August 23, 2002, Mrs. Dudley executed the will that has been admitted to probate without objection. This will increased the testamentary bequests to claimants by similar or greater amounts than they would have received from the ITF accounts. For example, previously the Brushabers would have received the $70,000 ITF account and $73,500 under the old will; the

new will increased the bequest to the Brushabers to $140,000. The Oakes would have received

the $35,000 ITF account and no cash bequest; the new will gave them a specific bequest of $100,000.

In 2004, Mrs. Dudley made a gift of 20 acres of property in Pomfret, New York, to the Brushabers. Prior to making the gift, Mrs. Dudley obtained an appraisal that assessed the property at $24,000. The court has no information that the Brushabers refused the gift or believed that Mrs. Dudley was not competent to make the gift.

In January 2005, Mr. Brushaber called Sommer, advised him that Mrs. Dudley was near death and asked for money to prepay the funeral bill and other expenses. An account was set up for that purpose. After Mrs. Dudley died on January 13, 2005, Brushaber paid some estate bills, closed the account and kept the balance. When he refused to return the money, the estate commenced a proceeding to have the money returned. Ultimately, the court granted summary judgment to the estate and directed Brushaber to return the money. The court further ordered Brushaber to return a refund of the funeral bill that belonged to the estate. The court also awarded interest and costs without prejudice to the estate's right to seek counsel fees (see In re Dudley, 13 Misc 3d 1228 (A), 2006 WL 3026685 [NY Sur]). To date, Brushaber has not returned any of the money.

After Mrs. Dudley's will was admitted to probate without objection, letters were issued to Mr. Sommer on May 13, 2005. Mr. Sommer has been unable to finalize the estate because claimants demanded more than their specific bequests. Claimants allege that Mr. Sommer wrongfully terminated the ITF accounts, and also claim that Mrs. Dudley was incompetent when she converted the ITF accounts to investment accounts before she executed the new will.

However, claimants do not challenge her testamentary capacity when she executed the will a month or so after she converted the ITF accounts to investment accounts, nor do they challenge her capacity two years later when she gifted the 20 acres to the Brushabers.

Before the court now are (1) the estate's petition for advice and direction; (2) claimants' petition to require the estate to deliver to them the value of the ITF accounts that they claim were "wrongfully and negligently" liquidated by James Sommer (!); and (3) the estate's cross-motion to dismiss claimants' petition, strike scandalous material from claimants' petition and assess costs, surcharges and counsel fees. For reasons that follow, the estate's petition for advice and direction is granted, the claimants' petition to deliver specific property is denied, and the estate's cross-motion to strike scandalous material and assess costs, surcharges and fees is granted in part and denied in part.

SCPA 2105 (1) provides that a person having a claim to property that is in the possession or control of the fiduciary can petition the court for an order requiring the fiduciary to deliver the property (see Estate of Mancuso, 227 AD2d 930, 643 NYS2d 784 [4th Dept 1996]). The claimants' efforts to bring these ITF accounts, which were eliminated long before there was an estate, within the parameters of § 2105 seems to be quite a stretch. For example, the accounts were never in the fiduciary's possession or control and further, the accounts were never part of the estate, having been converted to brokerage accounts three years before Mrs. Dudley died. [*3]

The creator of an ITF or "Totten" trust (see Estate of Totten, 179 NY 112, 71 NE 748 [1904]) may revoke it at any time and the beneficiary of the trust has no standing to follow the proceeds or hold the depositor liable (see Estate of Beck, 63 NY2d 1026, 484 NYS2d 512

[1984]). The beneficiary has no vested right in the trust, only an expectancy that he or she might

receive the trust in the future (Id., see also Blackman v. Estate of Battcock, 78 NY2d 735, 579 NYS2d 642 [1991]; Matter of Bobeck, 143 AD2d 90, 531 NYS2d 340 [2d Dept 1988]; Matter of Woznia v. Geyer, 244 AD2d 148, 672 NYS2d 429 [2d Dept 1998]). Thus, in the usual situation where a Totten trust is revoked by the depositor, it would seem that a beneficiary would have no right to discovery on the question of why the depositor revoked the trust. That would seem especially so when the original depositor is deceased.

However, there is a small exception to this rule when "extraordinary circumstances" are present, "as where the withdrawal [of the original Totten trust] resulted from fraud or duress, or an unauthorized act" (Estate of Beck, 63 NY2d 1026, 484 NYS2d 512 [1984]; see also Silk v. Silk, 162 Misc 773, 295 NYS2d 517 [Sup Ct, Kings County 1937]; Estate of Mary Tornatore, NYLJ, Jan. 10, 2002, at 30, col 5 [Surr Ct, Nassau County]). Here, claimants attempted to bring their contentions within SCPA 2105 by alleging that Mr. Sommer "wrongfully and negligently" liquidated the ITF accounts by using his power of attorney. This effort is both unavailing and fraudulent.

The court notes that there is no attribution for the allegation that Sommer used his power of attorney to close the ITF accounts; claimants do not even make an information and belief claim. A rambling affidavit from Eugene Brushaber, most of which violates the Dead Man's Statute (see CPLR 4519), and most of which attacks the will which has already been probated, alleges that Mrs. Dudley "ceased consulting with her financial advisors and relied solely on James Sommer" in "obliterating" the ITF accounts. This is yet another unattributed allegation and is contradicted by documentary evidence and affidavits from disinterested witnesses. The court notes further that while several of Mrs. Dudley's prior wills were attached to the claimants' motion, the ones most recent in time to the probated will were not among them.

The court believes that unattributed factual claims are entitled to no weight and claimants' petition fails on that basis alone. Even were that not the case, however, the proof supplied by the estate overwhelmingly establishes its right to judgment on these issues.

First, the affidavit of James Sommer attests that he had nothing to do with closing the ITF accounts. His only use of the power of attorney was at Eugene Brushaber's request, to set up an account so Brushaber could pay Mrs. Dudley's bills as she was dying, after which Brushaber attempted to keep the money. Next, the affidavit of Thomas Urbanek establishes that it was he who suggested that Mrs. Dudley employ a financial planner to organize and perhaps consolidate her many accounts. Mr. Sommer had nothing to do with that recommendation.

The affidavit of William Gilmour also demonstrates that Sommer played no role in eliminating the ITF accounts. After meeting with Mrs. Dudley, Mr. Gilmour mailed her the documents required to transfer the ITF accounts to investment accounts and she executed the documents. In its papers, the estate has included the letters Mrs. Dudley sent to the bank directing them to transfer the ITF accounts to investment accounts. Gilmour also suggested to Mrs. Dudley that she might wish to meet with her lawyer to make changes to her will. Mr. Urbanek's affidavit further shows that after the ITF accounts were transferred, Mrs. Dudley met with Urbanek and Sommer to have another will drawn so the ITF beneficiaries would receive [*4]increased bequests under the will to "make up" for Mrs. Dudley closing out the ITF accounts. The new will did precisely that.

It is clear what claimants are attempting to do. They cannot attack the will because the will immediately prior did not contain the increased bequests to claimants that were contained in the new will. Thus, if they successfully challenged the will (unlikely as that appears), they would have lost the increased bequests. Instead, claimants seek to "double dip" by obtaining the

values of the ITF accounts in addition to the increased bequests under the will that were clearly intended to replace the ITF accounts. If they are to do this, it will have to be directed by a higher court than this one.

The court finds absolutely no extraordinary circumstances here or any evidence whatsoever that the original trusts were altered as a result of fraud, duress or act not authorized by Mrs. Dudley (see Estate of Beck, 63 NY2d 1026, 484 NYS2d 512 [1984]). The affidavits submitted by the estate establish that Mrs. Dudley engaged in thoughtful estate planning and substituted testamentary bequests for the ITF accounts. Assuming, arguendo, that Mrs. Dudley's competence to terminate the ITF accounts can even be raised in a proceeding limited to "fraud, duress or unauthorized act," the self-serving affidavit of Mr. Brushaber is the only source for the claim that Mrs. Dudley was incompetent at the time she converted the ITF accounts, it relies almost entirely on inadmissible evidence, and it contains multiple false allegations that have been disproven by competent evidence. Such an affidavit is insufficient to warrant further discovery or an evidentiary hearing.

Further, the court believes that principles of estoppel are applicable. Claimants have not alleged that Mrs. Dudley was incompetent when she executed the instant will or when she gifted property to the Brushabers two years later. By not doing so, the court believes the claimants are estopped from attacking Mrs. Dudley's competence at some earlier time.

Turning now to the estate's motion to strike certain material and assess costs, counsel fees and sanctions, the court agrees that the allegations claimants made against Mr. Sommer are reprehensible and unfounded. Further, this court takes a dim view of making false allegations against an attorney for reasons of financial gain (see Dwaileebe v. Six Flags Darien Lake, 11 Misc 3d 958, 810 NYS2d 326 [Sup Ct, Cattaraugus County 2006]). Even after the estate

demonstrated that claimants' allegations were meritless, there was no effort on claimants' part to withdraw them (see Rules of Chief Administrator [22 NYCRR] § 130-1.1). It is important that the false claims against Mr. Sommer be part of the record that may ultimately be reviewed by the Appellate Division. Therefore, the motion to strike the prejudicial and false allegations is denied. Further, it should be clear from this decision that the court believes that the allegations made against Mr. Sommer are entirely false.

The estate's motion for advice and direction and the cross-motion for costs and counsel fees is granted. If claimants desire a hearing on the appropriate amount of counsel fees, they should notify the court and one will be scheduled. Claimants' petition seeking delivery of the value of the ITF accounts is denied. Further, the court may sanction claimants and/or counsel after they have had a reasonable opportunity to be heard (see Rules of Chief Administrator [22 NYCRR] § 130-1.1 [d]). The court believes their conduct may be frivolous under all revelant subsections of Rule 130 and a hearing will be conducted on that issue.

Submit order on notice.

Dated: Little Valley, New York [*5]

March 22, 2007

_________________________

Hon. Larry M. Himelein