A New York appeals court affirms that an attorney engaged in self-dealing, malfeasance and gross negligence in the management of an elderly woman's estate, and upholds the imposition of surcharges and the denial of commissions. Matter of Witherill (N.Y. App. Div., 3rd Dept., No. 500225, Feb. 1, 2007).
E. Tefft Barker was Dorothy C. Witherill's attorney for at least 14 years, and after he retired from the practice of law Mr. Barker served as her financial advisor, charging a fee of $17,000 a month and retaining substantial control over her assets through Ms. Witherill's attorney-in-fact. Following Ms. Witherill's death at age 96, Mr. Barker and the attorney-in-fact, as co-executors of the estate, filed a final accounting, to which the sole residuary beneficiary objected.
The surrogate's court imposed surcharges on the co-executors, denied commissions to Mr. Barker, and revoked his appointment for misconduct in his handling of the estate. One surcharge was for $92,000 that the court said Mr. Barker had falsely claimed as reimbursement from Ms. Witherill. The court also found that after all of the estate's debts and expenses had been paid, Mr. Barker removed at least half of the remaining assets to Florida and lost much of them on junk bond investments that he ignored for 17 months.
The Appellate Division of the New York Supreme Court affirms, finding that through self-dealing, malfeasance and gross negligence, Mr. Barker was responsible for significant losses to the estate.
For the full text of this decision, go to: https://www.courts.state.ny.us/reporter/3dseries/2007/2007_00704.htm .
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