A New York probate court rules that an attorney is disqualified from representing himself as an estate's executor at trial because he is deemed to be representing the estate's beneficiaries' interests, not his own. In the Matter of the Estate of Walsh(N.Y. Surr. Ct., No. 555-P/06, Aug. 23, 2007).
Shortly before his death at age 85, Thomas Walsh executed a general power of attorney naming Nora Dillon as his attorney-in-fact. Ms. Dillon then deposited $393,453 of Mr. Walsh's assets into two joint bank accounts that were held in both their names. Attorney Robert J. Reid, representing himself as executor of Mr. Walsh's estate, filed a petition alleging that the estate is entitled to the accounts' proceeds because Mr. Walsh lacked capacity to execute the power of attorney.
Attached to his petition were e-mails that Mr. Reid had sent to another attorney regarding the joint accounts. In her response, Ms. Dillon moved to disqualify Mr. Reid because he would be a "necessary trial witness and must be disqualified based upon the advocate-witness rule."
The New York Surrogate's Court grants Ms. Dillon's motion that Mr. Reid be disqualified. It holds that because Mr. Reid is "representing the interests of the estate's beneficiaries, rather than his own," he is subject to the advocate-witness rule. The court reasons that "the obvious rationale for the right to self-representation is that litigants have a right to advocate on their behalf where their own freedom or property interest are at stake. Here, Mr. Reid has no such interest at stake."
For the full text of this decision, click here.
Did you know that the ElderLawAnswers database now contains summaries of more than 1,200 fully searchable elder law decisions dating back to 1993? To search the database, click here.
Subscribe to the Knowledge Bank.
