In re the Estate of McDonnell

Appellate Division of the Supreme Court of New York

In re the Estate of McDonnell

265 A.D.2d 557, 698 N.Y.S.2d 493, 1999 N.Y. App. Div. LEXIS 10809

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 25, 1999

StatusPublished

Cited by1 cases

This text of 265 A.D.2d 557 (In re the Estate of McDonnell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of McDonnell, 265 A.D.2d 557, 698 N.Y.S.2d 493, 1999 N.Y. App. Div. LEXIS 10809 (N.Y. Ct. App. 1999).

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Opinion

—In a probate proceeding, the petitioner appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Nassau County (Radigan, S.), dated January 27, 1999, as reduced her executor’s commission in light of her failure to comply with SCPA 2307-a.

Ordered that the decree is affirmed insofar as appealed from, without costs or disbursements.

SCPA 2307-a provides, inter alia, that an attorney who [558]*558prepares a will “to be proved in the courts of this state”, and who is also named therein as an executor, must make certain disclosures to the testator before the execution of the will (see, SCPA 2307-a [1] [a], [b], [c]). Pursuant to SCPA 2307-a (5), the penalty for noncompliance with this requirement is a 50% reduction in the statutory executor’s commissions to which such an attorney would otherwise be entitled.

Here, it is conceded that the petitioner-attorney drafted a will in which she was named as the executor, and that she failed to comply with the above-mentioned disclosure requirement (see also, SCPA 2307-a [2]). Accordingly, the Surrogate’s Court properly reduced her executor’s commission in accord with SCPA 2307-a (5) (cf., Matter of Weinstock, 40 NY2d 1). Santucci, J. P., Thompson, Sullivan and Smith, JJ., concur.

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—In a probate proceeding, the petitioner appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Nassau County (Radigan, S.), dated January 27, 1999, as reduced her executor’s commission in light of her failure to comply with SCPA 2307-a.

Ordered that the decree is affirmed insofar as appealed from, without costs or disbursements.

SCPA 2307-a provides, inter alia, that an attorney who [558]*558prepares a will “to be proved in the courts of this state”, and who is also named therein as an executor, must make certain disclosures to the testator before the execution of the will (see, SCPA 2307-a [1] [a], [b], [c]). Pursuant to SCPA 2307-a (5), the penalty for noncompliance with this requirement is a 50% reduction in the statutory executor’s commissions to which such an attorney would otherwise be entitled.

Here, it is conceded that the petitioner-attorney drafted a will in which she was named as the executor, and that she failed to comply with the above-mentioned disclosure requirement (see also, SCPA 2307-a [2]). Accordingly, the Surrogate’s Court properly reduced her executor’s commission in accord with SCPA 2307-a (5) (cf., Matter of Weinstock, 40 NY2d 1). Santucci, J. P., Thompson, Sullivan and Smith, JJ., concur.

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Bluebook (online)

265 A.D.2d 557, 698 N.Y.S.2d 493, 1999 N.Y. App. Div. LEXIS 10809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mcdonnell-nyappdiv-1999.

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