Paul M. Chazan, Petitioner-Appellant. v. << (2005)

Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about September 30, 2003, which, to the extent appealed from, directed that the commissions of petitioner as attorney-executor shall not exceed half the statutory commissions to which he would otherwise be entitled, unanimously affirmed, without costs.

The Surrogate's order directing that petitioner's statutory commissions as attorney-executor be limited by reason of the circumstance that the testator did not acknowledge in a writing separate from the will that the disclosure required by SCPA 2307-a(1) had been provided, was mandated by SCPA 2307-a(5) (see Matter of Weygand, 4 Misc.3d 190, 777 N.Y.S.2d 263 [Sur. Ct., Greene County, 2004];  Matter of Pacanofsky, 186 Misc.2d 15, 714 N.Y.S.2d 433 [Sur. Ct., N.Y. County, 2000];  Matter of McGarry, N.Y.L.J., June 10, 2002, at 31 [Sur. Ct., Suffolk County];  Matter of Bruder, N.Y.L.J., March 15, 2001, at 25, col. 1 [Sur. Ct., Nassau County];  but see Matter of Winston, 186 Misc.2d 332, 717 N.Y.S.2d 879 [Sur. Ct., Bronx County, 2000] ).   We note that although the requirement of SCPA 2307-a of a separate written acknowledgment of disclosure was not expressed with optimal clarity in the original version of the statute, the statute as recently amended (L. 2004, ch. 709) to “clarify [ ] disclosure requirements regarding commissions to an attorney-executor,” plainly provides in its second subdivision that the testator's disclosure acknowledgment “must be separate from the will,” and in so doing eliminates any relevant uncertainty as to what the statute as originally enacted was intended to require.