In re Estate of Hemlani

Opinion

IN THE SUPERIOR COURT OF GUAM 2 ,, ~;:-;,-A,Lb,(':T QC: r' l "' t IN THE MATTER OF THE ESTATE, ) \J\:,J.>'IJ.)JI 1, I IJVr, /1 )1,11 3 ) PROBATE CASE NO. PR0123-13 4 OF )

)

5 RADHI P. HEMLANI, ) DECISION AND ORDER )

6 Deceased. )

7 )

8 ----------------------------~)

9 INTRODUCTION

10 This matter came before the Honorable James L. Canto II on Vasudev B. Hemalni and

II P.D. Hemlani Foundation's objections to appointment of executor, filed on January 22, 2014.

12 Oral arguments were heard on March 10, 2014. Attorney Jeffery A. Cook represented himself,

13 Attorney Rodney J. Jacob appeared on behalf of P.D. Hemlani Foundation, Ltd., Attorney

14 Leevin Camacho represented Vasudev B. Hemalni, and Attorney Rachel M. Taimano-Auyu

15 represented Jack P. Hemlani. Supplemental briefing was allowed to be filed by March 17,

16 2014. Having considered the parties' briefs, oral arguments, and the applicable law, the Court

17 now issues the following Decision and Order.

18 BACKGROUND

19 On September 16, 2013, Jeffrey A. Cook (hereinafter "Cook") filed a petition for

20 probate of the estate of Radhi P. Hemlani (hereinafter "Radhi"), with will annexed, and for his

21 appointment as the executor of the estate. Subsequently, Jack P. Hemlani, P.D. Hemlani

22 Foundation (hereinafter "PDHF"), Marcelene C. Santos in her -capacity as the Public Guardian

23 ofRadhi until her death, Kamulesh K. Hemlani, and Vasudev B. Hemlani (hereinafter "Vashi")

24 (hereinafter together referred to as "Objectors") in various capacities filed an objection to the

25 named executor and an objection to the probate of the annexed will.

26 Pursuant to a hearing on January 8, 2014, the Court held that the objection to the named

27 executor shall be ruled upon before the Court considers the will contest. (Hr' g, Record Log at

28 10:09:16, Jan. 8, 2014).

On January 22, 2014, Vashi filed an objection to the appointment of executor. Vashi 2 argues that Cook is unfit to act as executor because he has already been adjudged by the 3 guardianship court as being improvident and having a want of integrity. (Obj. to Appt. of 4 Executor, 2, Jan. 22, 2014). 5 Also on January 22, 2014, PDHF filed a supplemental objection to the petition to 6 appoint Cook as executor. PDHF argues that Cook should not be appointed executor because 7 he will not loyally serve the estate. (Supp. Obj. to Appt. of Executor, 10, Jan. 22, 2014). 8 Specifically, PDHF contends that: (1) Judge Anita A. Sukola's order preventing Cook from 9 representing Radhi in any fiduciary capacity precludes him from serving as executor of the 10 estate; and (2) Cook's conflicts of interest render him incapable ofloyally serving the estate. !d. 11 at 10-16. 12 On February 5, 2014, Cook filed a response to the various objections to his appointment 13 as executor. Cook argues that the objections are unsupported and that he should be appointed to 14 serve as executor because: (1) the deceased's choice of executor of her will should be honored; 15 (2) evidence exists to show that Radhi intended to give gifts to family members and not give 16 everything to charity; (3) there is no evidence that the Superior Court of Guam ever made a 17 finding that Radhi was incompetent or incapacitated; (4) there is no evidence that Petitioner 18 cannot or will not perform the duties of executor of Mrs. Hemlani's will; (5) Judge Sukola's 19 order relied on reports from the Public Guardian, which relied on misrepresentations from the 20 Objectors that Radhi's charitable intent was not being followed by Cook as her counsel; and (6) 21 as an executor, Cook owes no fiduciary duty to Radhi, who is now deceased. (Petitioner's 22 Response, 1-7, Feb. 5, 2014). 23 On February 19, 2014, PDHF filed a reply. PDHF maintains that: (1) the Superior Court 24 previously removed him as counsel for his conflicts in all capacities as Radhi's fiduciary; (2) 25 Cook's on-going conflicts have never been fully disclosed or adequately waived; (3) Cook 26 remains a debtor ofthe Estate and subject to claims; (4) Cook is part of a documented scheme to 27 corrupt the intentions of the decedent. (PDHF's Reply, 1-5, Feb. 19, 2014). 28 Also on February 19, 2014, Vashi filed a reply. Vashi challenges Cook's ability to serve as executor because: (1) the guardianship court found it necessary to appoint the office of the 2 Public Guardian and new legal counsel in order to provide Radhi with independent 3 representation; (2) there is a judicial finding removing Cook from acting on behalf of Radhi in 4 any capacity; and (3) it is undisputed that Cook wrongfully assisted in the transfer of assets. 5 (Vashi's Reply, 1-3, Feb. 19, 2014). 6 DISCUSSION 7 I. Requirements to Serve as Executor 8 Title 15, Chapter 17 of the Guam Code governs the appointment of executors of an 9 estate. 15 GCA § 1701 et seq. (2013). The statute specifically proscribes that "[n]o natural 10 person is competent to serve as an executor who ... is adjudged by the Superior Court of Guam 11 incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want 12 ofunderstanding or integrity." 15 GCA § 1701(c)(5) (2013). The Guam Code fails to define 13 the terms "improvidence" or "want of understanding or integrity," and the Court is also without 14 guidance from the Supreme Court of Guam as to the interpretation and application of this 15 section of the statute. Thus the Court will look to other jurisdictions for guidance. 16 Under California law, a court may deny appointment of a personal representative if the 17 personal representative would be subject to removal, such as by a conflict of interest that is 18 sufficient to require removal. CAL. PROB. CODE § 8402 cmt. (West 2013). Thus whenever an 19 objection is made to the appointment of an executor, "the underlying issue for conflict of 20 interest purposes is whether the executor has sought to advance his or her self-interest at the 21 expense of the estate." Baker Manock & Jensen v. Super. Ct. of Fresno Cnty., 96 Cal.Rptr.3d 22 785, 791 (Ct.App. 2009) (citations omitted) (internal quotations omitted). In New York, the 23 term "improvidence" has been employed in its Surrogate's Court Procedure Act, and is defined 24 "as being that which would be likely to render the estate unsafe and liable to be lost or 25 diminished." In re Estate of Badore, 341 N.Y.S.2d 970, 977 (Surr. Ct. 1973); see also N.Y. 26 SURR. CT. PROC. AcT § 707 (McKinney 1995). 27 Viewing the instant case, Judge Anita A. Sukola issued an order on November 6, 2012 28 in In re Matter of Hem/ani, SP 0195-11, which reiterated that court's previous order that Cook

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be relieved from his representation ofRadhi and any future representation of her in any capacity, 2 whether personal or fiduciary, to all litigation in which she has involvement. In re Matter of 3 Hemlani, SP 0195-11, at 1 (Super. Ct. Guam Nov. 6, 2012). This Court recognizes that, as an 4 executor, Cook's duty is to serve Radhi's estate. However, this prior order by Judge Sukola 5 casts doubt upon Cook's ability to faithfully and loyally serve the intentions of Radhi in the 6 administration of her estate. Cook's competence as an executor is made even more questionable 7 by a reading ofthe final report of the Public Guardian in SP0195-11, which describes Cook's 8 violation of Judge Sukola's orders. (Obj. to Pet. By PDHF, Exhibit 3 at 4-5, Oct. 29, 2013). 9 Cook admits these violations. (Decl. of Jeffrey A. Cook, 16, Feb. 5, 2014). 10 Furthermore, Cook previously represented the estate of P.D. Hemlani (hereinafter 11 "P.D.") in a different matter. (Decl. of Jeffrey A. Cook, 2, Feb. 5, 2014). Under the current 12 petition for probate ofthe estate ofRadhi with will annexed and for Cook's appointment as the 13 executor of the estate, 50% of certain property is due and owing to the re-opened estate of P .D. 14 (Pet. For Prob., 3, Sept. 16, 2013). In a similar manner, it appears that Radhi's estate has a 15 claim to 50% ofthe assets in the estate ofP.D. (Decl. of Jeffrey A. Cook, 6-7, Feb. 5, 2014). 16 Cook reasons that the Radhi's estate's claim to one half of assets in the estate of P.D. does not 17 create a conflict because it was always Radhi's position that everything Radhi and P.D. owned 18 was community property to which she is entitled to a one-half share. !d. However, this does 19 not change the fact that the estate ofRadhi has a claim upon the estate ofP.D., and the position 20 taken by the estate of P.D. regarding what constitutes community property and the division of 21 such property may be different from Radhi's position. As former counsel for the estate ofP.D., 22 Cook's ability to faithfully maintain his fiduciary duty to the estate of Radhi is placed into 23 question, especially when Cook's representation of his current client may have materially 24 adverse effects upon his former client. 1 25

26 1 Rule 1.9(a) of the Guam Rules of Professional Conduct states as follows: "A lawyer who has formerly represented 27 a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives 28 informed consent, confirmed in writing." Guam R. Prorl Conduct 1.9(a). The Court was not presented with any evidence demonstrating that the estate ofP.D. gave such an informed consent.

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It bears noting that the decedent's right to appoint an executor shall not be disregarded

2 lightly. In re Estate of Badore, 341 N.Y.S.2d at 977. A single conflict of interest, such as a 3 landlord-tenant relationship between the executor and the testatrix, is not in and of itself a 4 sufficient cause to decline appointment of an executor. !d. However, when numerous conflicts 5 of interests exist, such as in the present case where the executor is in a position of divided 6 loyalty, the Court finds sufficient facts to warrant the removal of the appointed executor. 15 7 GCA § 1701(c)(5) (2013); In re Estate of Badore, 341 N.Y.S.2d at 977. Thus the Court finds 8 that Cook is not competent to serve as executor of Radhi' s estate. 9 Ill 10 Ill 11 Ill 12 CONCLUSION 13 Based upon the foregoing, the objections to the appointment of Jeffrey A. Cook as 14 executor are hereby GRANTED. This matter is set for further proceedings on July 16, 2014 at 15 9:00a.m. 16

17 SO ORDERED this ~~ day of July, 2014. 18

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HON. JAMES L. CANTO II 22 Judge, Superior Court of Guam 23

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26 SERVICE VIA COURT BOX 27 1acknowledge,that a copy olthe original neroto was placed In the 28 court box of: n 1\ '\. 'fMf\€tr , tv f-\~llt' OJ.Lt~~ r \.::· ~<MQ ,R· -:s~ t CJifJ'f Date: 'l..-\ 0 Time: J ·,q Qr\A 'l.J. f).\

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