In re the Estate of Ford

Citations: 79 A.D.2d 403; 436 N.Y.S.2d 882; 1981 N.Y. App. Div. LEXIS 9720

Court: Appellate Division of the Supreme Court of the State of New York; March 18, 1981; New York; State Appellate Court

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Thomas E. Ford passed away on June 3, 1979, leaving an estate valued between $2,000,000 and $3,000,000. In his will dated December 22, 1978, he bequeathed his entire residuary estate to Anne W. French, who later became his wife on April 20, 1979, and named her executrix. The will did not mention his first wife, Marian Moore, or their daughter, Naneen Evans Ford. Anne W. Ford sought to have the will admitted to probate, but on August 29, 1979, objections were raised by the Shea and Gould law firm on behalf of Naneen, citing Ford's advanced chronic alcoholism at the time of the will's creation and alleged undue influence by French. Moore did not contest the will, having renounced her estate rights in a separation agreement.

The Surrogate appointed Ninette S. Bordoff as guardian ad litem for Naneen, who subsequently filed a report on November 2, 1979, recommending against the will's probate. Bordoff highlighted the decedent's alcoholism and the proponent's encouragement of his rehabilitation, while noting that the decedent had expressed discontent with the objectant prior to the will's drafting. Bordoff requested funds for a professional investigator to further assess Ford's mental state and motivations, ultimately concluding that the existing facts did not support recommending probate but did not allow her to align fully with the objections.

On November 29, 1979, Sheldon D. Camhy from the Shea firm petitioned for Bordoff's removal, arguing that her role as a volunteer law assistant could create challenges in handling the case. The Surrogate approved Camhy's appointment as the new guardian ad litem on November 30, 1979.

Bordoff and the proponent’s law firm did not receive the petition by the date the removal order was signed. On January 29, 1980, Camhy filed a motion to authorize $5,000 from estate funds for an investigation, while the proponent sought to vacate the November 30, 1979, order appointing a successor guardian ad litem. The Surrogate denied the motion for estate funds, citing a lack of precedent, and this aspect is not contested on appeal. The cross motion was denied due to the proponent's lack of standing, as her interests conflicted with those of the infant. The appeal focuses on this denial. There is no specified procedure in the Surrogate’s Court Procedure Act for removing a guardian ad litem, but the Surrogate has inherent power to do so for just cause to protect the infant's interests. The Surrogate can appoint a guardian ad litem but does not have unfettered discretion to remove one; proper procedure requires a motion served to all parties and the guardian ad litem, with adequate proof. Bordoff and the proponent could not respond to the removal petitions as the order was signed before they were received. The cross motion to vacate did not address this procedural flaw, and Bordoff was not served with it, leaving her without an opportunity to respond. The Surrogate should have mandated a sworn statement from Bordoff regarding her position. Bordoff, functioning as a 'voluntary law assistant,' may have felt constrained in her independence due to her role and the Surrogate’s influence. Although she intended to proceed with her investigation, her silence following the removal order left questions about her acquiescence. An unforeseen change of circumstances could justify a substitution of guardians, but Bordoff should provide an explanation for any such change. Generally, a proponent cannot challenge the initial appointment of a guardian ad litem, but circumstances differ once one has been appointed.

SCPA 404 (subd 3) outlines the responsibilities of a guardian ad litem, including the requirement to diligently represent and protect the interests of the person under disability, file an appearance, and submit a comprehensive report with recommendations upon concluding their duties or as directed by the court. The guardian ad litem's primary allegiance is to the infant, but they must also provide a fair and thorough report as an officer of the court. Bordoff’s preliminary report was noted as thorough and impartial, not favoring either party, which allowed the proponent to anticipate continued fairness in the investigation. The proponent had the right to contest the removal of the original guardian ad litem in favor of one opposed to the probate. The court concluded that the cross motion to vacate the removal order should have been granted, reinstating the original guardian ad litem due to procedural and evidentiary errors. The objectant was permitted to renew their motion with appropriate proof and notice. The Surrogate retains discretion to appoint a successor guardian ad litem, such as Camhy, despite having filed objections on behalf of the infant, if justified. The order from the Surrogate’s Court denying the proponent’s cross motion was reversed, granting the motion to vacate the successor appointment, with leave to renew the removal motion upon proper procedures, without costs.