Petitioner and respondent are sisters and coexecutors of the estate of their deceased mother who, in her will, left each an equal share of her residuary estate. In November 2007, Richard D. Wickerham was retained to serve as counsel for the estate, and he executed a retainer agreement wherein he would receive 5% of the estate's total tax value as his fee. The retainer agreement also provided that additional costs could be incurred for legal services rendered to the estate above the 5% cap if justified by "extenuating circumstances," and would be paid at a rate of $250 per hour.
Two years later, petitioner commenced proceedings seeking an accounting of the estate (see SCPA 2208) and a determination of Wickerham's compensation for legal services rendered to it (see SCPA 2110).
Respondent objected to Wickerham receiving any fee for legal services rendered on behalf of the estate that exceeded the 5% figure agreed to by the parties in the retainer agreement. Surrogate's Court issued a decision and a decree, which found that
Initially, we do not agree with respondent that Surrogate's Court abused its discretion by directing that 20% of Wickerham's fee be paid from her share of the residuary estate. SCPA 2110 (2) provides that Surrogate's Court "may direct payment [of compensation] from the estate generally or from the funds in the hands of the fiduciary belonging to any legatee, devisee, distributee or person interested." Here, the court concluded that respondent, by her actions, caused the estate to incur unnecessary legal expenses and that those fees—or a portion thereof—were properly chargeable to her share of the estate (see Matter of Hyde, 15 N.Y.3d 179, 186 ).
However, while respondent is undoubtedly responsible for some of the acrimony that has characterized the administration of this estate, we do agree with her that the counsel fee awarded by Surrogate's Court, on this record, cannot stand. First, the amount awarded by the court—$58,000—was substantially more than what Wickerham had requested as his fee, and exceeds that which was agreed to by the parties in their retainer agreement. Further, the record does not support the determination of Surrogate's Court that extenuating circumstances were encountered in providing legal services to this estate, which warrant a legal fee in excess of the 5% ceiling set forth in the retainer agreement. In that regard, the agreement provided that if extenuating circumstances required that legal services be performed for the estate above and beyond what was contemplated by the parties in the retainer agreement, the executors were to be consulted and "pre-approval [would] be first sought and secured" before such services were rendered and additional legal expenses incurred. These services included, but were not limited to, "complex taxation matters, real estate matters and estate litigation." In his application seeking compensation above the 5% cap set forth in the retainer agreement, Wickerham did not identify which legal services justified this additional fee, and did not claim that he consulted with the executors or sought their approval prior to providing these additional legal services to the estate.
Ordered that the decree is modified, on the law, without costs, by reversing so much thereof as approved counsel fees in the amount of $58,000 to Richard D. Wickerham; matter remitted to the Surrogate's Court of Albany County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.