Guardian ad Litem Appointed to Determine the Date of Death of Kathleen McCormack Durst, an Absentee

By Shira Bloom, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Surrogates Court Procedure Act provides that a Guardian ad Litem may be appointed by the Court to represent an infant, person with a disability, or an absentee.[1] A petition may be filed with a court of competent jurisdiction to appoint a named Guardian ad Litem or the Court may choose to appoint a Guardian to assist in protecting the legal rights of the ward from the Part 36 list.[2] The Guardian ad Litem must be an attorney admitted to practice law in the State of New York.[3] She must file a consent to act and a statement relaying that she has no interest or conflict adverse to her ward.[4] She must file an appearance and diligently take all steps deemed necessary to protect the interest of her ward, file a report of her activities, and make a recommendation to the court.[5] She must always review that file, ascertain that service of process on her ward was proper, and that the court has jurisdiction. The Guardian ad Litem must report to the court what she believes to be in the ward’s best interests, regardless of whether it coincides with the wishes of the ward.[6]

Kathie McCormack Durst married real estate heir, Robert Durst in what appeared to be a happily-ever-after tale.[7] Kathie was close to completing medical school at the Yeshiva University Albert Einstein College of Medicine when she mysteriously vanished on January 31, 1982, and has not been seen or heard from since that date.[8] Kathie’s body was never recovered and no official crime scene exists.[9] Now, thirty-five years later, Kathie’s family members have petitioned the Surrogate’s Court of New York County to declare Kathie dead as of January 31, 1982, as they believe Robert Durst may have had some involvement in her disappearance.[10] Kathie’s is currently declared an absentee, under a previous order of the New York Surrogate’s Court, but family and friends believe that Robert and Kathie engaged in a heated argument on the night of January 31, 1982, which led to Robert killing Kathie.[11]

As Kathie is an absentee, the court will await recommendation from the Guardian ad Litem, Charles Captenakis, who was appointed by the court in September 2016.[12] Once the Guardian Ad Litem’s recommendation is offered, the court will make a determination as to when Kathie should be declared dead and the appropriate date of death pursuant to Estate, Powers and Trusts Law (hereinafter “EPTL”) § 2-1.7.[13]

Robert is currently seventy-three years old and worth $100 million.[14] He was recently extradited to California, from New Orleans, where he was charged with weapons possession, where he is being charged with the murder of long-time friend, and alleged confidante, Susan Berman.[15] He allegedly killed Berman to prevent her from revealing information to the authorities relating to Robert’s role in Kathie’s disappearance.[16]

This is not Robert’s first interaction with the law; he was acquitted of murder in Galveston, Texas, despite admitting to killing and dismembering his neighbor, Morris Black.[17] Durst argued that it was done in self-defense.[18] The Jinx, a series produced by HBO, was released where Robert Durst admits to “killing them all,” in reference to Kathie and his other two victims.[19]

Where a petition has been made to the court to make a declaration of death, the EPTL § 2-1.7 governs the action. An absentee may be declared dead if for a period of three years or longer, she “has not been seen or heard from and her absence is not satisfactorily explained.” Should this be the case, the absentee will be declared “to have died three years after the date she went missing, or on an earlier date if such a date can be established through clear and convincing evidence as the most probable date of death”.[20] The EPTL also provides that if it can be proven that the absentee was exposed to a specific peril of death at the time of the disappearance, it may be a sufficient basis to establish that she died “less than three years after her absence commenced.”[21]

We now await the Guardian ad Litem’s recommendation to the court, and the courts determination of whether January 31, 1982, will be the day Kathie is declared dead. The decision by the court will determine whether a future action may be brought by Kathie’s family on her behalf, such as other civil litigation and the administration of Kathie’s estate. The recognition of January 31, 1982, as the date of death will help to bring justice and closure to Kathie’s family who has been without legal closure for thirty-five years.

[1] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[2] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[3] N.Y. Surr. Ct. Proc. Act § 404(1) (McKinney 1968).

[4] N.Y. Surr. Ct. Proc. Act § 404(2) (McKinney 1968).

[5] N.Y. Surr. Ct. Proc. Act § 404(3) (McKinney 1968).

[6] Matter of Aho, 39 N.Y.2d 241 (1976).

[7] Memorandum for Petitioner, In Re the Application of Ann C. McCormack, by her Special Guardian and Attorney-in-Fact Carol Bamonte, concerning the Estate of Kathleen Durst (2015) No. 1982-5053/D.

[8] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[9] Id.

[10] Id.

[11] Id.

[12] Order Appointing the Guardian Ad Litem, No. 1982-5053/D.

[13] N.Y. Est. Powers & Trusts Law § 2-1.7 (McKinney 2000).

[14] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[15] Charles V. Bagli, Family Of Robert Durst’s First Wife Ask Court To Declare Her Dead, The New York Times (July 14, 2016), https://www.nytimes.com/2016/07/15/nyregion/family-of-robert-dursts-first-wife-asks-court-to-declare-her-dead.html?_r=0.

[16] Complaint, supra, note 14.

[17] Complaint, supra, note 14.

[18] Complaint, supra, note 14.

[19] Complaint, supra, note 14.

[20] N.Y. Est. Powers & Trust Law § 2-1.7(a) (McKinney 1996).

[21] N.Y. Est. Powers & Trust Law § 2-1.7(b) (McKinney 1996).

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