In re the Estate of Van Zandt

117 A.D.2d 812, 499 N.Y.S.2d 434, 1986 N.Y. App. Div. LEXIS 53084

Opinion

—Renewed motion by the appellant to (1) disqualify C. Robert Clemensen from acting as attorney for the estate and/or the coexecutrices of the estate of Leroy W. Van Zandt, deceased, (2) strike the affirmations of said attorney which appear in the record on appeal in the appeal from the order of the Surrogate’s Court, Rockland County, dated December 15, 1983, (3) enjoin said attorney from further participation in the appeal, (4) grant summary reversal in favor of the appellant, and (5) extend the appellant’s time to file her notice of election to take against the will of the deceased husband.

Renewed motion granted to the extent that C. Robert Clemensen is disqualified from acting as attorney for the estate in the plenary hearing or hearings to be held in the Surrogate’s Court in accordance with Matter of Van Zandt (117 AD2d 810). In all other respects, motion denied.

Based on our review of the record, we conclude that C. Robert Clemensen should be disqualified from acting as the attorney for the decedent’s estate in the plenary hearings to be held pursuant to the order of this court made on the companion appeals decided herewith, which hearings will resolve, inter alia, the petitioner’s allegations that she was fraudulently induced into executing a prenuptial agreement waiving her statutory right of election. Clemensen’s conflict of interest is based upon the fact that he, acting as the decedent’s attorney, drafted the subject prenuptial agreement as well as the decedent’s last will and testament and, in all likelihood, will be called as a witness at the hearing or hearings. Mollen, P. J., Gibbons, Rubin and Kooper, JJ., concur.