In the Matter of the Estate of Renate Hofmann, Deceased.
Chadbourne & Parke, L. L. P., New York City (Charles F. Gibbs and Marjorie L. Cohen of counsel), for Bob G. Roberts and another, preliminary executors movants. Sullivan & Cromwell, New York City (Theodore O. Rogers, Jr., Basil P. Zirinis, III, and Keith McKenna of counsel), for United States Trust Company of New York, movant. Carter, Ledyard & Milburn, New York City (Jack Kaplan of counsel), movant pro se, and for Richard B. Covey, movant. Paul Weiss Rifkind Wharton & Garrison, New York City (Mark H. Alcott, Maria K. Keane and Julia Tarver of counsel), and Seaman & Ashley, New York City, for Chase Manhattan Bank and another, executors respondents.
Eve Preminger, S.
This proceeding is an application to fix attorneys' fees for the preliminary executors of decedent's estate. Before the Court are a motion to dismiss the answer of the executors who ultimately qualified as permanent fiduciaries, and a motion to seal the answer and to seal the sealing motion. For the reasons set forth below, all of the motions are denied.
The decedent, Renate Hofmann, was the widow of the internationally renowned abstract artist Hans Hofmann. She suffered from emotional disturbances which led to the appointment in 1981 by the New York County Supreme Court of a corporate fiduciary (the Bank) and a noted New York trusts and estates lawyer (the Lawyer) as cocommittees of her assets, valued at more than $50 million, and to the appointment of the Lawyer as committee of her person. The Bank and the Lawyer served in these capacities until Mrs. Hofmann's death in 1992.
Upon Mrs. Hofmann's death two wills were offered for probate. One instrument dated March 23, 1972 named the current executors as fiduciaries; another handwritten instrument dated February 16, 1988, with codicil dated one day later, named as executor Mrs. Hofmann's bodyguard, Bob G. Roberts, who selected the Bank as coexecutor. The executors named in
the 1972 will and certain others objected to the probate of the 1988 instrument.
At the outset of the probate litigation was a vigorous dispute over the appointment of preliminary fiduciaries. Observing the rule of priority established by SCPA 1412 (2) (a), this Court chose to avoid a " mini-probate contest" at that early stage and granted preliminary letters testamentary to Mr. Roberts and the Bank as the fiduciaries designated pursuant to the instrument latest in date. The Court noted, however, its reservations about the validity of the 1988 will. (See, Matter of Hofmann, NYLJ, Nov. 30, 1992, at 27, col 2.)
The will contest was settled before trial. In a decree dated June 25, 1996, the 1988 will was expressly denied probate and the 1972 will was admitted to probate, as modified to reflect the provisions of the parties' settlement. The parties nominated in the 1972 will were granted letters testamentary.
The probate decree also provided that the attorneys who represented Mr. Roberts and the Bank " shall have their fees for services rendered to the Preliminary Executors fixed at the foot of this Decree after filing herein their respective Affidavits of Services, upon ten days prior written notice served by certified mail upon the attorneys for the parties who have appeared herein." Mr. Roberts and the Bank had been represented in their unsuccessful efforts to probate the 1988 will by the firm (the Law Firm) that now seeks to dismiss the executors' answer in this proceeding to fix its fees.
After the settlement of the probate contest, the Lawyer and the Bank filed their final account of proceedings as cocommittees for decedent in the Supreme Court, New York County. The executors served and furnished to the Supreme Court, but did not file, objections to that account which contained unusual and shocking allegations of misconduct on the part of the Lawyer, the Bank, and Mr. Roberts. The allegations included charges of gross and wilful neglect, and sought damages for pain and suffering allegedly endured by Mrs. Hofmann during the tenure of the cocommittees. The Bank and the Lawyer served and furnished to the Supreme Court, but did not file, papers in which they set forth defenses to the executors' allegations.
The Supreme Court proceedings were settled and the parties executed a confidential agreement pursuant to which the committees made ...