Aprobate petition has been filed by Edward J. Gower II as nominated Executor. The Petition requests that the instrument purporting to be the Last Will and Testament of the decedent, Edward J. Gower, a/k/a Edward J. Gower, Sr., dated January 31, 2018, be admitted to probate. The Petition also asks that Edward J. Gower II be appointed as the Executor of the Estate. The decedent is survived by his spouse (Linda J. Gower) and by his four adult children (Edward J. Gower II, Sara Schillinger, Jennifer White, and Alison Sulinski). The petition originally identified Linda and the four children as Interested Parties of Full Age and Sound Mind. However, by amended petition, Linda has now been identified as a Person Under Disability who resides in a nursing home due to “age and infirmity.” Petitioner has submitted a durable general power of attorney (NY Statutory Short Form) executed by Linda on January 3, 2018, naming Edward II, Jennifer and Alison as her attorneys-in-fact, and authorizing her agents to act separately. Petitioner has requested that this power of attorney be recorded in the Surrogate’s Court [EPTL §13-2.3(a)]. In support of this application, the petitioner has also submitted an Affidavit of Attorney-In-Fact describing the circumstances of such appointment and service [Uniform Rules of Surrogate's Court §207.48]. The propounded will bequeaths all personal property to Linda, and devises the residuary estate to The Edward J. Gower Family Trust. However, the petition states that the Trust was revoked on consent prior to the decedent’s death. Therefore, the petition alleges that Linda will inherit all personal property under the will, and the first $50,000 plus one-half of the residuary estate as a distributee. The petition also alleges that each of the four children will inherit a one-fourth interest in the residuary estate that remains after Linda receives her distribution. Petitioner has filed Waivers of Process and Consents to Probate that have been executed by Sara, Jennifer, and Alison. A Waiver and Consent has also been executed on behalf of Linda by Alison, as her attorney-in-fact. The petition is accompanied by a copy of The Edward J. Gower Family Trust, dated January 31, 2018. The Trust is an irrevocable trust that names Linda as the income beneficiary. The Trust also permits the trustees to make certain discretionary payments of trust principal for the benefit of the four children and their issue. Upon Linda’s death, the trustees are directed to distribute the trust principal to the four children in equal shares, per stirpes. The petition is also accompanied by a copy of a Trust Revocation, which was signed in counterparts, the last signature being dated July 7, 2021 (approximately one month prior to decedent’s death). The Trust Revocation states that the creator, trustees, and all beneficiaries consent to the termination of the Trust. The Trust Revocation also states that certain improved real property located at 32 Mt. Rutsen Road in Rhinebeck, New York is an asset of the Trust (the “Real Property”), and directs the trustees to transfer title of the Real Property back to the decedent. The decedent and all four children signed the Trust Revocation in their respective capacities (as creator, trustees and beneficiaries]. Edward II also signed the Trust Revocation on behalf of Linda, as her attorney-in-fact. A Surrogate may accept a Waiver and Consent executed by an attorney-in-fact on behalf of a disabled person, and dispense with the appointment of a Guardian ad Litem, when (1) the power of attorney has been submitted for recording, (2) the attorney-in-fact submits a valid Rule 207.48 affidavit, and (3) there is no conflict of interest between the disabled person and the attorney-in-fact [Matter of Murray, 14 Misc 3d 591 (Sur. Ct. Erie County 2006); Matter of Garvin, 153 Misc 2d 43 (Sur. Ct. Rensselaer County 1991)]. However, when there is a potential conflict of interest between the disabled person and the attorney-in-fact, then the Court will not rely on the power of attorney and will instead appoint a Guardian ad Litem [Matter of Kunkis, 162 Misc 2d 672 (Sur. Ct. NY County 1994) (son who was attorney-in-fact for mother had a conflict of interest and could not sign a renunciation of her spousal rights to an intestate estate, where that renunciation would increase the son's share in the estate)]. The power of attorney was executed by Linda on January 3, 2018, four weeks prior to the execution of the propounded will and The Edward J. Gower Family Trust. The power of attorney was drafted, and its execution was supervised, by the same law firm that prepared the propounded will and the Trust. The power of attorney is valid on its face, and appears to be part of a thoughtful and purposeful estate plan. Petitioner has also filed the power of attorney with the Court for recording pursuant to EPTL §13-2.3(a), and has produced a valid Rule 207.48 affidavit. Therefore, the first two requirements for a valid Waiver and Consent signed by an attorney-in-fact have been satisfied. However, the Trust Revocation implicates a potential conflict of interest between Linda and her attorneys-in-fact. This potential conflict tips the balance in favor of the appointment of a Guardian ad Litem to protect Linda’s interests.1 Under the propounded will and Trust, Linda is the income beneficiary of the residuary estate. The Trust Revocation would deprive Linda of that income, and would instead result in a one-time distribution of a portion of the residuary estate to her, and an immediate distribution of the remaining residuary estate to the children. It is possible that this outcome could be beneficial, or at least neutral, to Linda’s interests. But given the limited information available to the Court at this early stage of the proceedings, it is unclear whether that will prove to be the case. For instance, no information is currently available as to whether the Trust Revocation will have any impact on Linda’s eligibility for any benefits that she may already be receiving in connection with her placement at a nursing home. The concern generated by this uncertainty is amplified by the petition’s failure to identify Linda as a person under disability, despite listing her address as a local nursing home. While this omission was cured in the amended petition, the Court also notes that the petition and amended petition both affirmatively state that the assets of the Estate are limited to personal property, that the Estate does not have an interest in any real property in New York, that the Estate does not have any testamentary assets other than those already disclosed, and that the Estate does not have any cause of action for the recovery of testamentary assets. These sworn representations run contrary to the express terms of the Trust Revocation, which identifies the Real Property as an asset of the Trust, and directs the trustees “to transfer the Real Property to the Creator individually free of the terms of this Trust.” The failure to list an interest in the Real Property as an Estate asset in either the petition or the amended petition is further evidence of a potential conflict of interest between Linda and her attorneys-in-fact (who also signed the Trust Revocation on her behalf), and heightens the Court’s reluctance to move forward without the valuable insight that a Guardian ad Litem can provide. [see Matter of Gormley, 2 Misc 3d 233, 234 (Sur. Ct. Kings County 2003) (the guardian ad litem "is to function as an arm of the court by keeping the court informed of his findings and their bearing on the overall proceeding, thereby protecting the court from inadvertently neglecting to consider the person under disability's interests"); Matter of Roe, 65 Misc 2d 143, 146 (Sur. Ct. Suffolk County 1970) ("It is the duty of the guardian ad litem to examine into the facts and to make a thorough and fair report of information obtained")]. It is therefore, ORDERED, that Shane Egan, Esq., is appointed as Guardian ad Litem for Linda J. Gower, a person alleged to be under a disability, That appointment will be confirmed and formalized by a separate Order of this Court of this same date, containing the requisite Part 36 compliance provisions. This constitutes the Decision and Order of the Court. Dated: January 14, 2022
