Virginia Lawyers Weekly VA Lawyers Weekly
The commissioner of accounts properly held a hearing regarding a conservator’s accounting of the decedent’s estate, even though the information prompting the hearing came from a disinterested party.
Background
Kishna Minor was appointed conservator of Eric Witt Wilder, her incapacitated grandfather. A condition of the appointment required her to post a $1.2 million bond. Wilder died intestate.
Several months later, the decedent’s son wrote to the commissioner of accounts. He stated his concern about the way Minor was handling his father’s finances. His mother was Eric Witt Wilder’s sole heir. The son said his mother should have received more funds.
The son and his wife requested that the commissioner hold a 1209 hearing. The commissioner did so and learned Minor did not disclose account -4200 in her filings. The commissioner later discovered more than $574,000 in unexplained transactions in that account.
The commissioner’s report stated that because Minor did not provide documentation, the second and final accounting could not be approved.
At the 1209 hearing, Minor’s counsel argued that the son lacked standing to request the hearing because he was not an interested party, and, as a result, the matter should be dismissed. The commissioner asserted that she was an interested party. Minor’s counsel responded that the commissioner’s role was that of a “neutral arbiter.”
The commissioner issued a summons for Minor to file a “proper final account.” Later, the court issued an order for Minor to appear to show cause why she had not filed a proper account. Minor objected to the order, again arguing that Wilder’s son lacked standing and that the commissioner was not impartial.
After the court issued the order, Minor’s counsel asked for a certificate for an interlocutory appeal. The commissioner held a hearing ordered by the court to determine how much of Minor’s bond should be forfeited. The commissioner determined that Minor and the bond’s insurer were jointly and severally liable for $574,000.
At a later hearing to show cause, Minor’s counsel again raised the standing argument and asserted that because the commissioner was not an impartial arbiter, Minor’s due process rights were violated.
Analysis
“Ms. Minor argues that Va. Code §64.2-1209 only allows interested person to bring matters to the attention of the Commissioner. The statute does not define an interested person.
“However, Ms. Minor convincingly argues that an interested party is one who has standing, because §64.2-1209 says that the interested person may ‘insist upon or object to anything which could be insisted upon or objected to by such interested person if the Commissioner of Accounts were acting under an order of a circuit court for the settlement of a fiduciary’s accounts made in a suit to which such interested person was a party.’ …
“[T]he Decedent’s son and daughter-in-law are not interested persons. In decedents’ estate matters, interested persons are those who are pecuniarily interested in the results of the suit. … [D]ecedent’s son was not an heir and so had no pecuniary interest in the matter.
“Therefore, decedent’s son and daughter-in-law could not request that the Commissioner of Accounts hold a hearing under Va. Code §64.2-1209. The decedent’s widow is the only interested person who could have asked the Commissioner for a hearing under Va. Code §64.2-1209.
“However, while the statute does prescribe a method by which the Commissioner can have a hearing, the statute does not say that is the only way a commissioner may conduct a hearing.
“Although the decedent’s son did not have standing to request a hearing be held, the Commissioner has the authority to review and report an accounting under §64.2-1200.
“A Norfolk City Circuit Court decision seems to be directly on point for this matter. In In re Trustee’s Sale of Property of Brown, 67 Va. Cir. 204 (Norfolk Cir. Ct. 2005), there were two trustees who were authorized to act either alone or in concert. …
“The Commissioner reviewed the trustee’s report of sales and disapproved of the reports as null and void because the appointment of one of the substitute trustees violated Va. Code §55-58.1(2). …
“The trustees in turn responded that the Commissioner’s authority extends only to reviewing and approving the accountings of trustee’s sales and cannot invalidate those sales because of an irregularity that the Commissioner found in the foreclosure of the sale. …
“The court however, reasoned that the Commissioner needs to ensure that the settlement of accounts is accurate, not just financially sound.”
The Brown court went on to state that “‘To perform his duties on behalf of the court, a commissioner’s authority must extend to every aspect of law or fact related to a fiduciary’s duties, qualifications, and actions that may affect the rights of a beneficiary of an estate or a fund before him. …
“‘Were a Commissioner of Accounts to be prohibited from considering such matters, how could he accurately and effectively assist the court? It would be an absurd result for a commissioner, knowing that there was a legal defect in the conduct of the sale, the accounting, or the fiduciary’s qualifications, to approve an accounting simply because it was mathematically correct.
“‘Therefore, the Court holds that a commissioner has the power and, indeed, the duty to reject an accounting if his examination reveals a failure by a fiduciary to comply with a statutory duty.’
“Just as in In re Trustee’s Sale of Property of Brown, it would have been an absurd result for the Commissioner to approve the trustees’ sales knowing that they were legally deficient, it would be just as an absurd result in this case to require the Commissioner to approve Ms. Minor’s accounting and not look into a claim brought by an uninterested person that Ms. Minor’s accounting was deficient.
“Therefore, the Commissioner was correct in conducting a hearing after being contacted by the decedent’s son.”
Ruling
“The Court rules that the Commissioner behaved appropriately in conducting a hearing under Va. Code §64.2-1209.”
In Re Estate of Eri Witt Wilder, Case Nos. CL-2021-11578 & FI-2018-1980, April 11, 2022, Fairfax County Circuit Court (Smith). Anne Heishman, Joseph W. Stuart for the parties. VLW 022-8-023, 7 pp.
