Tate v. McQuade

• Decision Date: 14 July 1975
• Citation: 373 N.Y.S.2d 263,83 Misc.2d 951
• Parties: Charles J. TATE, Administrator, Estate of Nicholas C. Tate, Plaintiff, v. John J. McQUADE, Individually and as guardian ad litem for Nicholas C. Tate, Defendant.
• Court: New York Supreme Court

Page 263

373 N.Y.S.2d 263

83 Misc.2d 951

Charles J. TATE, Administrator, Estate of Nicholas C. Tate, Plaintiff, v. John J. McQUADE, Individually and as guardian ad litem for Nicholas C. Tate, Defendant.

Supreme Court, Westchester County.

July 14, 1975.

Bennardo & Farrauto, Yonkers, for plaintiff; Morton N. Wekstein, Bronxville, of counsel.

James T. Whalen, North White Plains, for defendant.

HAROLD L. WOOD, Justice.

In the complaint herein, plaintiff, in his representative capacity, charges defendant, both individually and as former guardian ad litem for Nicholas C. Tate (hereinafter the father) with 'gross negligence, malpractice, non-feasance, misfeasance, malfeasance and breach of fiduciary relationship' regarding defendant's conduct and/or lack thereof in exercising a certain right of election on behalf of the father against the last will and testament of Nicholas L. Tate, (hereinafter the son).

The issues were tried before this Court alone, a jury having been duly waived by both sides.

The plaintiff-administrator of the father's estate has brought this action against defendant, a lawyer, for money damages for malpractice essentially, and for punitive damages as may be fixed by the Court. It is alleged by plaintiff that the malpractice occurred during defendant's representation of the father as the latter's guardian ad litem in a probate proceeding concerning probate of the son's will conducted in the Surrogate's Court of this County.

The claim for compensatory and punitive damages results, allegedly, from defendant's failure, as guardian ad litem of the father, to have taken steps necessary to have enabled his ward (the father) to exercise his personal right of election against an excessive testamentary gift for educational purposes (EPTL 5--3.3). While this probate proceeding concerned the will of the son who died March 31, 1971, the facts herein involved concern the estates of three decedents because, as will appear more fully below, soon after the son died, his mother, Julia Tate, died on September 25, 1971 and shortly thereafter, the father died on November 1, 1971.

Under the son's will, the father, at the time of the son's death, then over 90 years of age, was one of the son's two distributees, the other being the mother. The petition for probate of the son's will was later amended to describe the father as being then a person under disability because he was incapable of managing his own affairs and a request made, in view thereof, for the appointment of a guardian ad litem to protect the father's interests in his son's estate. By order dated June 3, 1971, the then Surrogate appointed defendant as guardian ad litem for the father in the probate proceeding of the son's will. Parenthetically, defendant was a long time friend of the Tate family. In this probate proceeding, the mother was separately represented by independent counsel.

Under the terms of the son's will dated and witnessed March 20, 1971, eleven days prior to his death, after disposing of certain personalty to his mother, the son left his entire estate, both real and personal to the University of Detroit for educational purposes. The father, through his guardian ad litem and the mother, through her counsel filed objections to the probate of the son's will. Additionally, the mother served a written notice of election against the excessive gift for educational purposes dated and verified September 14, 1971 upon the preliminary executor appointed in the son's probate proceeding and filed the original thereof in the Surrogate's Court, presumably pursuant to EPTL 5--3.3 on September 16, 1971.

While the son's probate proceeding was pending, the mother died on September 25, 1971. Under the terms of the mother's will, dated September 22, 1971, three days before her death, a trust was created for the father for his life with the remainder payable to defendant, her lawyer-friend who was then acting as guardian ad litem for the father in the son's probate proceeding. Defendant was also the named executor of the mother's will and, thereafter, received preliminary letters testamentary by order of the Surrogate's Court, dated October 19, 1971. Parenthetically, it should be noted here, that defendant was not the draftsman of the mother's will.

While the probate proceedings of both the son and the mother were pending the father died intestate on November 1, 1971 and plaintiff herein was appointed administrator of the father's estate by order of the Surrogate's Court dated November 10, 1971. By instrument verified November 17, 1971 and filed in the Surrogate's Court on November 24, 1971, plaintiff, as administrator of the father's estate, filed objections to the probate of the mother's will.

The probate proceedings of the son's and mother's wills were adjourned from time to time in the Surrogate's Court pending settlement discussions relative to the objections filed and then, on September 20, 1972, a written agreement of settlement was entered into among the preliminary executor of the son's estate, the preliminary executor of the mother's estate (who was the father's former guardian ad litem) and the plaintiff-administrator of the father's estate. Several individual beneficiaries of these estates also joined in the settlement agreement. This agreement settled the objections to probate filed against the son's will and the mother's will. As part of the consideration for this settlement agreement, the estate of the mother assigned to the estate of the father the elective share which the mother had sought to enforce with respect to the excessive educational gift made in the son's will to the University of Detroit and further agreed to pay to the father's estate the sum of $25,000.00.

The complaint now made by plaintiff, the administrator of the father's estate, essentially charges defendant, the lawyer who served as the father's guardian ad litem in the probate proceeding relating to the son's will, with having intended to deprive his ward, the father, of the father's right to inherit from the mother's estate and with further injuring his ward by 'failing' to take the steps necessary for the appointment of a committee for the father to protect the latter's interest in the son's estate through the exercise of the father's right to elect against the excessive educational gift made in the son's will to the University of Detroit.

Defendant, as guardian ad litem of the father, was appoint as such by order of the Surrogate on June 3, 1971 in the probate proceeding of the son's will. The mother's will, as noted above, was drawn by another attorney who also supervised its execution on September 22, 1971, three days before the mother's death. While the evidence adduced disclosed that defendant, while acting as the father's guardian ad litem, was told by the mother in the early part of May, 1971, that the latter wanted to make defendant a beneficiary of her will, the fact is clear that it was not until September 22, 1971 that the mother finalized her plans to do so by the execution of her will. While plaintiff has attempted to show that defendant, as guardian ad litem of the father in the son's estate was placed in a position of conflict with his ward by virtue of defendant's interest in the mother's will, no such conclusion can be drawn from the record here. At no time did a will made by the mother Exist in which the defendant-guardian was named a beneficiary until three days before the mother died. Neither is there evidence that the defendant-guardian inveigled the mother into naming him as a beneficiary in her will; rather, the evidence shows that the mother advised the defendant-guardian of her testamentary thoughts and inclinations and the defendant-guardian, quite properly, provided her with the name of an attorney with whom she could consult for the purpose of drawing her will (who was the same attorney who had already appeared on her behalf in the probate proceeding of the son's will). These facts, in and of themselves, do not mean that this defendant-guardian 'wrote himself' into the mother's will. The mother did consult with her own attorney who drew her will pursuant to her instructions. Her husband (father) was her only distributee and her testamentary plan for his benefit, as set forth in her will, was consistent with his circumstances of advanced age and disability--circumstances which certainly warranted his being cared for through the medium of a trust with liberal powers of invasion rather than his being bequeathed a substantial portion of the estate outright.

More importantly, however, is the fact that there has been no showing that the defendant-guardian's knowledge of a possible interest in the mother's testamentary plans worked to the father's detriment. The defendant-guardian duly filed objections on behalf of his ward, the father, to the probate of the son's will and objections to the probate of the mother's will were duly filed by plaintiff, the father's administrator. Thus, the father's rights in both probate proceedings were protected and preserved and the objections to probate would ultimately have been judicially determined were it not for the subsequent agreement and stipulations of settlement which took place among the various parties.

Plaintiff has predicated his main charge of malpractice against the defendant-guardian upon the latter's failure to seek an advisory opinion from the Surrogate with respect to the exercise of the father's right to elect against the excessive gift for educational purposes made in the son's will (EPTL 5--3.3). All parties agree that this right conferred by the statute is personal and must be exercised during the father's lifetime to be effective (EPTL 5--3.3, subd. (a)(4)). It is plaintiff's contention that had the defendant-guardian properly performed his duty, a committee for the father should have been appointed who could have then received the requisite judicial permission to...