In the Matter of the Estate of Arthur J. Elkan, Deceased
316-P/2002
SURROGATE'S COURT OF NEW YORK, BRONX COUNTY
22 Misc. 3d 1125A; 880 N.Y.S.2d 872; 2009 N.Y. Misc. LEXIS 334; 2009 NY Slip Op 50280U
February 20, 2009, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NEW YORK SUPPLEMENT.
PRIOR HISTORY: In re Anderson, 2008 N.Y. Misc. LEXIS 7342 (2008)
[**872] [*1125A] Will--Execution--Undue Influence.
COUNSEL: [***1] Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn, LLP, (Stephen Hochhauser, Esq. 
, of counsel), for Peter Gold, proponent.
Coyle & Associates, LLP, (Lorraine Coyle, Esq. 
, of counsel), for Marion Gerdus, objectant
Simmons, Jannace & Stagg, LLP, (Thomas E. Stagg , of counsel), for Lynn Federman.
JUDGES: Lee L. Holzman , J.
OPINION BY: Lee L. Holzman
Lee L. Holzman , J.
In this will contest, after a four-day bench trial and post-trial submissions, the court finds that the proponent failed to prove that the testator possessed testamentary capacity; that the objectant proved that a confidential relationship existed between the testator and Lynn Federman (Federman), an attorney; and, that the will was executed as a result of undue influence by Federman who is named as the beneficiary of 50% of the testator's residuary estate. Accordingly, the propounded instrument dated March 16, 2001 (the will) must be denied probate.
The testator died on March 10, 2002, a few months shy of his 88th birthday, with assets having a value of slightly less than $ 1,000,000, divided approximately equally between testamentary and non-testamentary assets. The propounded instrument contains pre-residuary legacies to each of the testator's [***2] two nieces, his only distributees, and to a friend. The residuary estate is bequeathed in equal shares to Federman and Marion Knapp (Knapp), and their shares pass to their respective issue in the event they predeceased the testator. The main difference between this will and the testator's March 2, 2000 penultimate will is that under the penultimate will, Knapp shared the residuary estate with Federman's mother, Anne, and as Anne predeceased the testator and that will did not contain an alternate disposition to her issue, Knapp would have been the sole beneficiary of the residuary estate under the penultimate will. The testator named one or more members of either or both the Knapp and Federman families as beneficiaries under several other prior wills dating back to 1989. However, Federman was named as a beneficiary for the first time in the propounded will.
The objectant, Marion Gerdus (Gerdus), a beneficiary under a prior instrument, is Knapp's daughter. It is not unreasonable to surmise that Gerdus is acting as a "stalking horse" for her mother, as the propounded will contains an in terrorem clause. The objectant alleges that the testator lacked testamentary capacity, the testator [***3] failed to declare that the instrument was his will, and the will was the product of undue influence and/or fraud perpetrated by Federman, Frank Klein (Klein), the attorney-drafter of the will, and Peter Gold (Gold), the nominated executor. The proof adduced at trial establishes that the testator forged a friendship with the Knapp and Federman families from the time that he, Edward Knapp and Murray Federman were employed by Glamorene. Although the testator was not an accountant, he was employed as the assistant comptroller. The testator continued to maintain a friendship with his two former co-employees and their spouses after Glamorene was sold, and his friendship with their respective wives continued after each of his former co-employees died. Gold first met the testator when Gold became a summer employee at Glamorene as a high school student. After Glamorene was sold, Gold employed the testator for a period of time at his accounting firm.
It appears that some time in the late 1990's the testator began to seek assistance with his financial affairs. Prior to 2000, Anne Federman assumed the role of assisting the testator with his financial affairs and her name was added to at least [***4] some of his accounts. Knapp's name had been added previously to some of the testator's other accounts.
The testator, a chronic alcoholic, fell in January 2000, and was admitted to a hospital for various ailments. Upon his discharge from the hospital in February 2000, he was admitted to Manhattanville Health Care Center (the nursing home), where he continued to reside until he was again hospitalized shortly prior to his death. The nursing home records indicate that, throughout his stay, the testator received physical therapy for injuries arising from his fall and medication for depression and psychosis.
The deposition of Dr. Garofalo, the testator's treating physician at the nursing home, is in evidence. The doctor opined that the decedent suffered from some dementia which he could not quantify. He stated that the testator's ability to give either an informed consent for medical treatment or to make financial decisions was a day-to-day situation. However, on any given day, it was less likely that the decedent was capable of making financial decisions than an informed medical decision.
Jeannette Delgado, a social worker at the nursing home, testified that the testator was a difficult resident [***5] who was required to wear an electronic ankle bracelet because he roamed. She stated that the testator was belligerent and abusive when he did not want to do something, and she never succeeded in obtaining his signature on an advance health care directive, despite her numerous attempts. In her opinion, and as the nursing home records reflect, the testator suffered from both long and short term memory loss during his entire stay at the facility. However, she conceded that his short term memory was better than his long term memory, as there were occasions when he accurately described the activities in which he participated that day.
Federman, an attorney who is employed as a vice president by a bank, was called as a witness by the objectant. Fedrman and her cousin went to the nursing home on March 15, 2001 to inform the testator that Federman's mother, Anne, died in an automobile accident on March 9, 2001. Federman and her cousin testified similarly with respect to what transpired at the nursing home. The testator was shaken by the bad news. However, after the testator calmed down, he was delighted that Federman volunteered to substitute for her mother in taking care of his financial affairs. [***6] The testator signed three blank checks from his own account so that Federman could use them to pay some of his bills. The testator told Federman that he wanted her to replace her mother in every way; i.e., she was to be named on the same bank accounts, named as his attorney-in-fact and named as the beneficiary of one-half of his residuary estate in a new will which he requested that she draft. Although Federman drafted a will for the testator in 1994, she told him that she could not draft the new will because she was to be named as a beneficiary. He then told her to call Gold who would give her the name and number of the attorney who prepared his penultimate will. On March 15, 2001, Federman conveyed to Klein, the attorney who drafted the penultimate will, the testator's wishes with respect to the power of attorney, the bank accounts and the will.
Federman also testified about many events that occurred both before and after her visit with the testator on March 15, 2001. Federman knew the testator since she was a child, as he visited with her parents. In later years, the testator occasionally requested that Federman assist him with certain legal matters. On one occasion, the testator [***7] gave Federman $ 10,000 to help her with her handicapped daughter. In 1999, Federman accompanied her mother to the testator's apartment where he reviewed his financial affairs with them. Federman conceded that after she became the testator's attorney-in-fact, she never used any of his accounts that were to pass to her by operation of law to pay the testator's expenses, and she used only accounts that were to pass to the Knapp family by operation of law.
Klein testified that, without any discussion with the testator, he prepared the documents that Federman instructed him to draft for the testator. In fact, Klein drafted two alternative wills for the testator. One mirrored the penultimate will, except that Federman replaced her deceased mother as a beneficiary of one-half of the residuary estate. The more complicated version, the propounded will, contains an in terrorem clause and provides for a contingent disposition in the event that either Federman or Knapp predeceased survived by issue. Klein explained that he drafted this more complicated version of the will to avoid the need for a new will in the event that either residuary beneficiary predeceased survived by issue. Although Klein [***8] did not articulate that contemplated litigation between the Knapp and Federman families was the specific reason for inserting the in terrorem clause in the propounded will, he conceded that he had received from Gold a February 2001 letter from Knapp's attorney indicating that she was planning to commence a proceeding for the appointment of a Mental Hygiene Law article 81 guardian for the testator.
Klein and Gold had a long standing personal and business relationship. They testified similarly with regard to the events that transpired at the nursing home on March 16, 2001. Klein asked Gold to come to the nursing home so that the two of them could act as attesting witnesses. The testator appeared pleasantly surprised when he was informed that his assets had a total value of between $ 800,000 and $ 1 million dollars. Nonetheless, neither Klein nor Gold indicated that they ever discussed with the testator the extent to which his assets would pass either by operation of law or pursuant to his will.
After Klein explained the difference between the two wills that he had drafted, the testator opted for the more complicated version. The testator read each provision of the will and decided that [***9] he wanted to increase the legacy to each of his nieces and to the friend. These changes were made by pen and were initialed in the margin by the testator, Klein and Gold. The testator increased the legacies to each niece from $ 100 to $ 5,000 even though he told Klein that his nieces still did not pay any attention to him.
Klein, an experienced attorney specializing in trust and estate law, and Gold, both testified that the testator appeared to understand all of the provisions of the will, that he was competent and signed the will at the end and they signed after the attestation clause as attesting witnesses, all in compliance with the formalities required by law. On the same day, the testator also executed the power of attorney in favor of Federman as well as authorizations to add her name to some of his bank accounts. Klein conceded that when he first met the testator in 2000 to discuss the provisions of the penultimate will, he had significant concerns about the testator's testamentary capacity. However, he no longer had those concerns when the propounded will and other documents were executed at the nursing home. Although Gold had not seen the testator for seven or eight years [***10] prior to the testator's admission to the nursing home, he opined that the testator was happy in the nursing home and the reason that he stayed there and allowed others to take care of his financial affairs was that he was lazy.
The testator's execution of the will and other documents at the nursing home on March 16, 2001 should be considered in conjunction with a proceeding commenced by Knapp to have a guardian appointed for the testator pursuant to Mental Hygiene Law article 81. Knapp retained Dr. Sack, a psychiatrist, to prepare a report for use in the guardianship proceeding. Dr. Sack also testified in this proceeding. The doctor visited the decedent at the nursing home in November and December 2000. After the first visit, Dr. Sack was of the opinion that the testator had mild dementia, as most of his answers were responsive. However, after Dr. Sack ascertained from Knapp and another friend that many of the testator's statements to him were inaccurate, including that the testator had a daughter and was taking care of his own financial affairs, the doctor concluded after his second visit that the testator "had a dementia of moderate degree," had "functional impairment secondary to [***11] the dementia," and "was not competent to handle his own affairs." Dr. Sack testified that although at times the testator might have been lucid, there was no time after December 2000 that the testator was completely competent.
In March 2001, Knapp commenced the guardianship proceeding. Federman used one of the blank checks that the testator signed on March 15, 2001 to pay an attorney to represent her in that proceeding. In an affirmation dated April 26, 2001, Federman argued that the court should find that the testator "is capable of handling his financial affairs with the assistance of myself as attorney-in-fact at no cost to him," or that she be appointed guardian of his person and property. Attached to this affirmation is a list of the testator's assets, valued at $ 989,284.50. Although Federman listed specific accounts, she failed to disclose either that a substantial portion of the testator's assets would pass to her by operation of law or that the testator recently executed a will naming her as the beneficiary of one-half of his residuary estate.
Roy H. Josephson, an attorney and the court evaluator in the guardianship proceeding, testified in this proceeding. He visited the testator [***12] at the nursing home on April 4, 2001. The court evaluator concluded that a guardian of the testator's person and property should be appointed as the testator "was somewhat confused" and that "some of his answers to questions were unresponsive." He found that the testator lacked knowledge or his responses were inaccurate, inter alia, as to the following: (1) the testator thought that the year was 1996 and he did not know either the date or the day of the week that the court evaluator visited him; (2) he was unable to identify the president, governor, or mayor; (3) the testator described his health as okay and stated he did not take any medications when, in fact, he suffered from various ailments and took several medications; and, (4) he claimed that he handled his own finances and denied that he asked Federman to handle his affairs or that he had signed any papers.
At the conclusion of the guardianship hearing on April 27, 2001, the court (Salman, J) stated on the record that there was clear and convincing evidence that the testator "failed to understand the nature of his impairment and his inability to understand the limitations both to handle his personal and financial needs." The [***13] court concluded that Federman should be appointed guardian of the testator's person and property; however, no order in that proceeding was ever entered because, after the hearing, Knapp and Federman began making charges and counter-charges against one another alleging that the other misappropriated the testator's funds. An attorney who represented Federman in the article 81 proceeding testified before this court that he told both Knapp and Federman to stop fighting over the testator's money and concern themselves more about his care. In any event, upon learning that Federman's name was added to some of the testator's bank accounts and that the testator had recently executed a will naming Federman as a beneficiary, Justice Salman placed limitations upon Federman's use of the power of attorney to dispose of the testator's funds. Shortly thereafter, Federman withdrew her application to be appointed guardian. The testator died before an order was ever entered appointing a guardian in the article 81 proceeding.
In a probate content, the proponent has the burden of proof on the issue of testamentary capacity (see Matter of Kumstar, 66 NY2d 691, 487 N.E.2d 271, 496 N.Y.S.2d 414 [1985]). Testamentary capacity is established [***14] by showing that when the testator executed the will, he: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property he was disposing of; and, (3) knew those who would be considered the natural objects of his bounty and his relations with them (id.). However, less capacity is required to make a will than is required to execute other legal documents or contracts (see Matter of Coddington, 281 App Div 143, 118 N.Y.S.2d 525 [1952], affd 307 NY 181, 120 N.E.2d 777 [1954]). Thus, even though the testator might suffer from a degree of dementia that is not uncommon for the elderly, such dementia or other ailments arising from old age only result in a lack of testamentary capacity where they exist to the degree that they impinge upon the testator's mental capacity to the extent that he cannot fulfill one or more of the aforementioned three requirements to possess testamentary capacity (PJI 7:51).
Viewed in isolation, the testimony of Klein and Gold, that the testator appeared to understand the provisions of the will as he read them and then decided to increase each of the pre-residuary legacies, might very well suffice to establish that the testator possessed testamentary capacity [***15] when he executed the will. However, their testimony was not the only proof adduced on that issue. Furthermore, even though both Klein and Gold apparently were aware that Knapp was seeking to be appointed the testator's guardian to take care of his financial affairs, neither one of them made any effort to ascertain whether the testator actually knew the nature and extent of his property, or whether he was likely to change his beneficiaries or the amount of any particular legacy from hour-to-hour or day- to-day. Notwithstanding that the testator appeared surprised when informed that he owned assets valued between $ 800,000 and $ 1 million, neither Gold nor Klein explored whether the testator was aware of what percentage of his assets would pass under the will as compared to the percentage that would pass by operation of law. It further appears that neither Klein nor Gold were aware that the testator suffered from dementia and psychosis for which he was receiving medication. Gold's conclusion that the testator allowed others to handle his financial affairs because he was "lazy," is at odds with the other proof adduced. Moreover, Gold knew that it had become necessary for him to prepare [***16] the testator's tax returns, even though the testator previously worked in Gold's accounting firm and prepared tax returns for others.
Even though Klein conceded that when he met with the testator in 2000 in connection with the preparation of the testator's penultimate will he was concerned about whether the testator possessed testamentary capacity, he took no meaningful steps one year later to ascertain the testator's mental capacity. Instead, Klein, without talking to the testator about his testamentary plans, took instructions for the preparation of the will from Federman, and then on his own initiative, prepared two wills, a "simple" will and a more "complicated" will. Klein then appeared at the nursing home the very next day with both wills, and the more complicated will was executed.
In summary, neither Gold nor Klein took any action which would show that either of them had any interest in pursuing any path that might enable them to make an informed decision about the testator's testamentary capacity. Notwithstanding that both Gold and Klein were apparently aware that Knapp was attempting to have a guardian appointed for the testator, neither of them asked the testator whether [***17] he wanted to wait a reasonable period of time to see if he was satisfied with the manner in which Federman was handling his financial affairs before she was rewarded by designating her, for the first time, as a beneficiary of approximately one-half of his assets. The court has no reason to doubt that Klein and Gold in good faith believed that it was perfectly natural for the testator to leave one-half of his residuary estate to Federman inasmuch as the testator had made a similar bequest to Federman's deceased mother in his penultimate will. However, Klein's actions speak louder than his words with respect to his confidence in the testator's mental ability, as Klein took testamentary instructions only from Federman, without attempting to call the testator, and opted to prepare two wills for the testator instead of discussing the issue with the testator in a telephone conversation.
Although almost all of the proof adduced indicates that the testator had good days and bad days, the testimony of the disinterested witnesses and the documentary evidence demonstrate that the testator suffered from ailments which frequently and seriously impinged upon his mental capacity. The testimony of [***18] both doctors as well as the nursing home records indicate that the testator's dementia resulted in both short and long term memory loss. Dr. Garofalo opined that it was less likely that the testator could make financial decisions than medical decisions. Dr. Sack concluded that there was never a time after December 2000 that the testator was completely competent. The court evaluator, who met with the testator approximately two weeks after the will was executed, reported that the testator was confused about the identity of many people and events, noting that the testator professed that he had not signed any documents which would allow Federman to handle his financial affairs when, in fact, he had done so.
Although numerous elderly people may have the requisite mental capacity on any given day to execute a will notwithstanding that they suffer from some degree of dementia or that they need a guardian to take care of some of their financial affairs, here, the credible proof adduced makes it highly unlikely that the testator possessed testamentary capacity when the will was executed (see Matter of Fish, 134 AD2d 44, 522 N.Y.S.2d 970 [1987]; Matter of Matteo, 134 AD2d 261, 520 N.Y.S.2d 594 [1987]; Matter of Slade, 106 AD2d 914, 483 N.Y.S.2d 513 [1984]).For [***19] the reasons stated herein, the court holds that the proponent failed to meet his burden of proof on the issue of testamentary capacity, and the objection alleging that the will should be denied probate on this ground is sustained.
In order for the objectant to prove undue influence she must establish opportunity, motive and that undue influence was actually exercised; i.e., an influence that amounted to a moral coercion to carry out the wishes of another that the testator was unable to refuse or too weak to resist (Matter of Walther, 6 NY2d 49, 159 N.E.2d 665, 188 N.Y.S.2d 168 [1959]; PJI 7:55). As undue influence with respect to a will is rarely exerted before a witness, it is frequently established by circumstantial evidence. Thus, numerous factors are considered including: the facts and circumstances surrounding the testator and the execution of the will; the condition of the testator's mind; the testator's dependency on and subjection to the control of the person accused of exerting the undue influence; the acts and declarations of that person showing the opportunity and disposition of that person to wield the undue influence; and the provisions of the will compared to prior wills as well as whether the will favors [***20] the person charged with the influence at the expense of others who, based on the testator's relationship with them, would be considered more natural objects of the testator's bounty (see Matter of Anna, 248 NY 421, 424, 162 N.E. 473 [1928]; Rollwagen v Rollwagen, 63 NY 504, 519 [1876]; Matter of Bach, 133 AD2d 455, 456, 519 N.Y.S.2d 670 [1987]).
Although the objectant always has the burden of proving undue influence, where a confidential relationship exists between the testator and a beneficiary, such as an attorney and client, an inference of undue influence may be drawn absent the attorney providing a satisfactory explanation for the bequest (see Matter of Putnam, 257 NY 140, 177 N.E. 399 [1931]; PJI 7:56). An inference of undue influence may also be drawn where the beneficiary was the attorney-in-fact for the testator and assumed responsibility for handling the testator's financial affairs (Matter of Neary, 44 AD3d 949, 843 N.Y.S.2d 689 [2007]). Even though no inference of undue influence arises where the attorney-legatee is not involved in relaying the testator's testamentary scheme to the drafter or with the drafting and execution of the will, the inference that arises from the existence of a prior confidential relationship between the testator [***21] and the attorney-legatee are not put to rest if the testator did not have the opportunity to obtain disinterested legal advice from an independent attorney (see Matter of Henderson, 80 NY2d 388, 605 N.E.2d 323, 590 N.Y.S.2d 836 [1992]; 2 NY PJI3d 7:56 at 1375-1377).
Here, at the time the will was executed, a confidential relationship existed between Federman and the testator. The day before the execution of the will, Federman, who performed legal services for the testator in the past, immediately began to assume responsibility for the testator's financial affairs by having the testator sign three blank checks against his account so that she could pay some of his bills. Moreover, the testator never consulted with an independent attorney, and Federman conveyed the testamentary scheme to the attorney-drafter.
In light of the long standing friendship between the testator and the Federman family, the court has no reason to doubt that Federman sincerely believed that it was appropriate for her replace to her mother as the beneficiary of a substantial portion of the testator's assets. Nonetheless, Federman failed to satisfactorily explain the bequest of one-half of the testator's residuary estate to her. Notwithstanding that [***22] the testator's mental condition was weak, as he suffered from both short and long term memory loss and at times was confused about his relations to people, the testator's testamentary scheme was conceived and effectuated with close to record breaking speed. Specifically, almost immediately after Federman delivered the bad news to the testator that her mother had died in an accident, Federman jumped to the rescue by replacing her mother as the person responsible for handling his financial affairs. The will and other documents were prepared upon Federman's instructions, and executed within a day even though the testator was not suffering from any ailment creating concern about his immediate death.
After the will and other documents were executed, Federman admittedly used the testator's assets in a way that benefitted her at the expense of the Knapp family. None of the accounts bearing Federman's name were used to pay any of the testator's expenses. Although there is no evidence that Federman ever discussed the guardianship proceeding with the testator, she used one of the testator's signed blank checks to pay for her own attorney in that proceeding. Meanwhile, Federman did not reveal [***23] to the court or the other participants in the guardianship proceeding that the testator had recently added her name to accounts or made a new will naming her as a beneficiary. In short, Federman's conduct in connection with the will and the guardianship proceeding, and the haste with which the will was prepared and executed, reflect that it was Federman, and not the testator, who believed it was imperative that the testator immediately execute a new will.
Accordingly, based upon the inference that arises from the confidential relationship between the testator and Federman, and all of the circumstantial evidence, the court finds that the proof adduced establishes by a preponderance of the evidence that the testator executed the will as a result of undue influence by Federman. Nonetheless, the proof fails to support the objectant's contention that Gold and Klein also exercised undue influence upon the testator. Perhaps Gold and Klein were wearing "rose colored glasses" as to the testator's mental capacity because they knew of the testator's long standing friendship with the Federman family and believed that the testator wanted to replace Federman for her mother as a beneficiary of his [***24] residuary estate. Nonetheless, their mistaken belief as to the testator's mental capacity does not establish that they participated in exerting undue influence upon the testator. The objectant's contention that Gold's motive is the commission that he would receive as the executor, and that Klein's motive is the legal fee he would earn in representing Gold as the executor, is not supported by any evidence. Gold and Klein both appear to be successful professionals, and the amount that they might earn for services rendered in this estate is an insufficient motive to support a finding that either of them exerted undue influence over the testator. Of even greater significance is the fact that Gold was the nominated executor under the penultimate will, so neither he nor Klein had any financial incentive to want a new will to be executed. Furthermore, there is not one iota of proof that Gold or Klein actually exerted undue influence upon the testator through the use of a promise or threat to perform or not perform services that the testator needed. Accordingly, the portion of the objections alleging that Gold and Klein exerted undue influence upon the objectant is dismissed.
The proof adduced [***25] does not warrant sustaining any of the remaining objections. Although those objections allege that the testator failed to publish to the attesting witnesses that he was signing his will and that Federman, Gold and Klein perpetrated a fraud upon the testator, the objectant's post trial submission reveals that her primary basis for those objections is her contention that the testator did not sign the will. First, forgery was neither pleaded, nor established. It is true that after the decedent's signature at the end of the will, his surname, "Elkan," is printed in parenthesis. However, if a lawyer and an accountant wanted to perpetrate the forgery of a document, it is unlikely that they would select a specimen that was somewhat unusual on its face. There is no logical reason for either Gold or Klein to engage in such conduct, and no proof that they did so. In any event, the testimony of the two attesting witnesses, one of whom also testified as the attorney who supervised the execution of the will, fulfills the proponent's burden of establishing by a preponderance of the evidence that the will was executed with all of the required formalities (see EPTL 3-2.1; Matter of Kindberg, 207 NY 220, 100 N.E. 789, 1 N.Y. L. Cas. 469 [1912]; [***26] Matter of Cottrell, 95 NY 329, 5 Civ. Proc. R. 340 [1884]; Matter of Finocchio, 270 AD2d 418, 704 N.Y.S.2d 634 [2000]). Accordingly, the objections alleging lack of due execution are dismissed. Moreover, objectant failed to adduce any proof that anyone made a false statement to the testator that caused him to make any testamentary disposition that he would not otherwise have made, and the objection alleging fraud is also dismissed (see Matter of Coniglio, 242 AD2d 901, 663 N.Y.S.2d 456 [1997]).
For the reasons stated herein, the court finds for the objectant on the issues of testamentary capacity and undue influence by Federman. Accordingly, the propounded will must be denied probate. As the objectant failed to establish that Gold lacked a good faith basis for propounding the will, the court finds no basis upon which to impose sanctions or to deny to him the reasonable counsel fees he incurred (see Matter of Elkan, 2008 N.Y. Misc. LEXIS 6083, 240 N.Y.L.J. 60, NYLJ, Sept. 24, 2008, at 40, col 6). Prior to settling a decree, the parties are directed to appear for a conference to be held at 9:30 a.m. on March 16, 2009 following the calendar call. The issues to be discussed include who is to be appointed fiduciary of the estate pending the appointment of a permanent fiduciary, and the [***27] status of the pending discovery proceedings that were held in abeyance pending the determination of the will contest. The Chief Clerk shall mail a copy of this decision, which constitutes the order of the court directing attendance at the conference, to all parties.