In re Estate of Remsen, 99 Misc. 2d 92 (N.Y. Sur. Ct. 1979)
NY Underlying Will Transaction
Facts: Decedent died leaving a last will and testament in which she distributed her residuary estate in equal shares to her two sisters, the Plaintiffs and to eight nieces and nephews and one relative by marriage. Plaintiffs retained an attorney whose firm had represented the decedent’s family for a long period. His duties were to represent them in the administration of this estate, including probate of decedent’s will, preparing and filing tax proceedings and terminating the estate by formal or informal means, depending upon the agreement of the parties. For more than eight months, no action was taken to probate the decedent’s will. The present proceeding to determine the fee of the former attorney, after his dismissal by Plaintiffs as their attorney, when he apparently refused or was otherwise unable to represent them at the scheduled title closing in the sale of the decedent’s residence. Plaintiffs claimed that their former attorney unduly delayed the probate of the decedent’s will, delayed the payment of the funeral expenses and other debts, and taxes and caused the loss of interest income.
Issue: Were the Plaintiffs correct in raising the issue of their former attorney’s ability to provide prompt legal services in a proceeded to fix and determine attorney fees within Surrogate’s Court?
The Result: Plaintiffs of an estate acted properly in raising the issue of their former attorney’s inability to provide prompt legal services in a proceeding to fix and determine the attorney’s fees as their failure to raise the issue at this proceeding might bar a subsequent malpractice claim.
The Lesson: The jurisdiction of the Surrogate’s Court is not so limited that it cannot determine the issues of malpractice of an attorney whose services and competence are relied upon by a lay fiduciary in the administration of an estate.