| Matter of Hardy |
| 2014 NY Slip Op 51630(U) [45 Misc 3d 1218(A)] |
| Decided on November 7, 2014 |
| Sur Ct, Yates County |
| Falvey, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
In the Matter
of the Application of Cindy Lou Gersbach, Executor, To Discover Property Withheld or
Obtain Information pursuant to SCPA 2103; and for a Determination as to the Validity,
Construction, and Effect pursuant to SCPA 1420 of the Last Will and Testament of Keith
L. Hardy, Deceased.
|
MEMORANDUM-DECISION AND ORDER
Petitioner executor successfully made a motion for Summary Judgment in this matter. The court ruled from the bench on August 7, 2014 and executed the resulting order on September 19, 2014. At the time the matter was heard, the court noted that SCPA §2302(6) provides that a Surrogate in a Will Construction Proceeding may award counsel fees "and other expenses necessarily incurred in the proceeding" [SCPA §2302(6)] and gave the parties the opportunity to present proof on whether such fees should be granted to the petitioner, and if so, the amount of fees to be paid by the respondent. The attorneys agreed to submit affidavits on the issue of fees in lieu of proceeding to a hearing.
The parties having made their submissions, the court now decides as follows:
The Court of Appeals in Mtr of Estate of Greatsinger, 67 NY2d 177 (1986) set forth factors for the Surrogate to consider in determining the issue of counsel fees in a will construction proceeding. It is in the Surrogate's discretion to determine whether counsel fees should be awarded, to whom they should be awarded, from what source they should be paid, and how much should be awarded. The factors listed in Greatsinger are: "whether there was a justifiable doubt necessitating construction; who instituted the proceeding; whether the party seeking a fee award acted solely in his own interest or in the common interest of himself and the estate; whether he was successful; whether there was benefit from the attorney's services to the [*2]entire estate or only to the share of the party seeking the award; what the effect of payment of the award will be upon the estate share of the successful party." Greatsinger at 184.[FN1]
Here, the court determined the construction matter upon the petitioner's summary judgment motion. The court ruled that the construction question could be determined upon a reading of the will, and no extrinsic proof was necessary. The respondent in defending the construction proceeding and in attempting to show "justifiable doubt" about the meaning of the will and decedent's intent, relied upon events that occurred and actions taken by decedent and respondent after the will was made by the decedent in 1994. It is this court's opinion, however, that the respondent's doubt concerning the meaning of the will, was not justified.
Therefore, applying the remaining Greatsinger factors, the court finds that the executor instituted the will construction proceeding. The executor in bringing the will construction did not act in her own interest, but in the interest of the estate, as she is not a beneficiary of the will or the trust. She was successful in bringing the petition. There was benefit from the petitioner's attorney's services only to the trust and not to the entire estate. If the court orders respondent to pay attorney fees, the effect upon the successful parties' share of the estate is that the trust will not be burdened with the amount of attorney fees granted. The court notes that the liquid assets in the trust corpus are insufficient to pay the attorney's fees in question.
The court concludes that the respondent shall pay the petitioner's attorney fees of $27,072.85 and expenses of $948.84 incurred in the construction proceeding through August 7, 2014, the date of the court's bench decision for a total of $28,021.69.
The payment shall be made withing sixty days of service of this order.