Guardian ad Litem in a New York Will Contest

In many contested probate proceedings there is a party in the room who was not invited by either side, who is paid by the estate, and whose opinion the Surrogate will read before anyone else's. That is the guardian ad litem. Clients often meet the guardian ad litem for the first time at a court conference and are not sure whether they are an adversary, an ally, or a referee. The answer is none of those exactly. This page explains who the guardian ad litem represents, what they do in a will contest, how they are paid, and how to work with them, whether you are proposing the will or objecting to it.

What a guardian ad litem is

A guardian ad litem is an attorney appointed by the Surrogate to represent the interests of a party who cannot represent themselves in the proceeding (SCPA 403). The statute calls such a party a "person under disability," and the term is broader than it sounds. It includes:

• a minor;
• an adult who is incapacitated or incompetent, whether or not a court has said so;
• a person whose identity is unknown, such as heirs who may exist but have not been found;
• a person whose name is known but whose whereabouts are unknown;
• a person confined in prison who does not appear;
• persons not yet born or not yet ascertained, such as the future children of a beneficiary of a trust created by the will.

The appointment is for this proceeding only, and the guardian ad litem's authority ends when the proceeding does. The guardian must be a lawyer admitted in New York, and must be eligible under the court system's rules on fiduciary appointments, which exist to keep the appointments from going to the same few people and to prevent conflicts (SCPA 404; 22 NYCRR Part 36). The guardian ad litem does not manage the ward's money and does not make personal decisions for the ward. Their job is to see that the ward's legal interest in this estate is protected.

When a guardian ad litem is appointed in a probate proceeding

The Surrogate appoints a guardian ad litem whenever a person under disability has an interest that could be adversely affected by the outcome and no one else is in a position to protect it. In a will contest the common situations are these.

• A minor distributee. The decedent's grandchild, whose parent died before the decedent, would inherit under intestacy. If the will cuts the grandchild out, someone has to decide whether the will should be challenged on the grandchild's behalf.
• An adult distributee with dementia who has no guardian. The decedent's elderly sibling, in a nursing home, is a distributee. No one has been appointed to manage the sibling's affairs. The sibling cannot sign a waiver, cannot decide whether to object, and cannot be defaulted.
• Unknown heirs. The petition states that the decedent's distributees are unknown, or that the decedent had cousins whose names and addresses cannot be found. The court appoints a guardian ad litem for the unknowns, and that guardian may look hard at the will, because the unknowns take everything if the will fails and there is no closer family. That inquiry often overlaps with a kinship proceeding.

What the guardian ad litem does

The guardian's task is to investigate and to report. In a probate proceeding that ordinarily means:

• Reviewing the will, the petition and the court file, including the affidavits of the attesting witnesses, prior wills on file, and any preliminary letters.
• Examining the attesting witnesses and the drafting attorney under SCPA 1404. The guardian ad litem has the same right to conduct those examinations as any other party, and usually does so, either separately or by attending the objectants' examinations and asking additional questions. The process is described on our page on SCPA 1404 examinations.
• Obtaining records. Medical records, the drafting attorney's file, and financial records where the guardian thinks they bear on capacity or influence.
• Deciding whether to object. If the investigation turns up a real basis to contest the will, the guardian ad litem files objections on the ward's behalf. If it does not, the guardian says so.
• Filing a report. The report goes to the Surrogate and is served on the parties. It describes what the guardian did, what was found, and whether the guardian recommends that the will be admitted, that objections be filed, or that some other step be taken. The court is not bound by the report but gives it real weight, because it comes from someone with no stake in the outcome.
• Participating in settlement. The guardian ad litem attends conferences and mediations and negotiates for the ward's share. But the guardian cannot bind the ward to a settlement on their own signature. Any settlement affecting the ward must be approved by the court, on the guardian's report that it is in the ward's best interest.

Why the guardian ad litem often becomes the most important person in the case

Three features of the role combine to make the guardian ad litem unusually influential.

First, the guardian is independent. Everyone else in a will contest is arguing for their own money. The guardian is arguing for someone else's and is answerable to the court. When the guardian reports that the execution was regular and the decedent knew what they were doing, objectants find the ground shifting under them. When the guardian reports that the drafting attorney was retained by the principal beneficiary and never met the decedent alone, proponents start talking about settlement.

Second, the guardian's fee comes from the estate, not from the ward's pocket. The guardian can investigate thoroughly without a client asking what it will cost.

Third, the guardian can object without fear of a no-contest clause. A no-contest clause forfeits the gift of a beneficiary who contests the will. New York's statute expressly exempts objections filed on behalf of a minor or incompetent person (EPTL 3-3.5). A guardian ad litem for a minor beneficiary can therefore contest a will that gives the minor something, and lose, without the minor forfeiting the gift. Adult beneficiaries have no such protection, and where a will contains a no-contest clause, an adult who wants the will examined but cannot afford to risk their gift will sometimes find that the guardian ad litem is the only party who can safely carry the objections forward.

How the guardian ad litem is paid

The court sets the guardian's fee at the end of the proceeding, on the guardian's affidavit of services, and directs how it is paid (SCPA 405). The fee is generally charged to the estate as an administration expense. Where the guardian's work benefited only the ward, and not the estate generally, the court may charge the fee to the ward's share. The court may also charge the fee to a party whose conduct made the appointment necessary or prolonged the guardian's work. In a contest that goes through discovery to a settlement or trial, the fee can be substantial.

What the parties can and cannot do

The guardian ad litem is counsel for a party, and the ordinary rules apply. Parties represented by attorneys communicate with the guardian through their attorneys. No one, on either side, may contact the ward directly to lobby for a position, ask the ward to sign anything, or suggest to the ward that the guardian is not acting in their interest. Where the ward is a minor or an incapacitated adult living with one of the parties, that party must be especially careful.

What the parties can do is help the guardian do the job. In our experience the most effective thing either side can do is to give the guardian, early and without being asked, the material the guardian will need anyway: the complete court file, the drafting attorney's file, the decedent's medical records for the relevant period, the transcripts of any examinations already taken, and a short letter explaining that side's view of the case. A guardian who has been given a well-organized file will still reach their own conclusion, but it will be based on the full record.

Guardian ad litem, Article 81 guardian, guardian of the property

These three are often confused, and they are different offices.

An Article 81 guardian with authority over the ward's property can usually appear for the ward in the probate proceeding, and if they do, no guardian ad litem is needed. A parent of a minor is not automatically entitled to appear for the child in a will contest, because the parent's interests may conflict with the child's; the court will ordinarily appoint a guardian ad litem unless a guardian of the child's property has been appointed and is disinterested. We discuss Article 81 and Article 17 guardianships on our page on guardianship in New York.

When a guardian ad litem is not needed

The court will not appoint a guardian ad litem where the person under disability already has a general guardian, committee, conservator or Article 81 guardian who appears in the proceeding and whose interests do not conflict with the ward's. Nor will it appoint one where the person under disability has no interest that the outcome could adversely affect: a minor who takes the same share under the will and under intestacy has nothing to protect, and the proponent's petition should say so. The proponent's lawyer should raise these points at the outset, because an unnecessary appointment adds months and a fee.

Practical timeline

The guardian ad litem is usually appointed on or shortly after the return date of the citation, once the court sees from the file that a person under disability is a party. The guardian files a consent to act and then, over the following weeks, reviews the file and requests records. If examinations under SCPA 1404 are held, the guardian participates, which usually means the examinations are scheduled around the guardian's availability as well as everyone else's. The guardian's report is generally filed after the examinations are complete and before the will is admitted or objections are tried. If the case settles, the guardian reports on the settlement and the court approves it as to the ward. The guardian's fee is fixed in the decree. In an uncontested probate with a minor distributee the whole process may take two or three months; in a contested case the guardian remains involved until the end.

How we can help

We have worked with guardians ad litem from both sides of the table since 2008. When we represent a proponent, we prepare the file so that the guardian can review it efficiently and reach the conclusion the evidence supports. When we represent an objectant, we make sure the guardian sees what we have found and understands why it matters, and we coordinate the examinations so that the record is built once and built well. When settlement comes, we structure the agreement so that the ward's share is defended and the court can approve it; see our page on settling a will contest. If a guardian ad litem has been appointed in your matter, or you think one should be, call us at 212-233-1233 or email [email protected].