Cite as: In The Matter of Epstein, 1881P2008/A/B/C, NYLJ 1202589714598, at *1 (Surr., SUF, Decided November 7, 2012)

Surrogate John M. Czygier, JR.


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Decided: November 7, 2012


Attorney for Petitioner: Ira Bierman, Esq., Jericho, NY.

Attorney For Respondent: Joseph J. Sciacca, Esq., Port Washington, NY.





By this application, pursuant to CPLR 3212, petitioner moves to compel her co-fiduciary to comply with the terms of an agreement entered into by and among the fiduciaries and beneficiaries of the estate concerning the distribution of assets. The application is opposed by respondent, the other co-fiduciary, who has cross moved for dismissal of the petition, attorney's fees and sanctions. For the reasons set forth below, the motion is denied and the cross motion granted solely to the extent that the underlying petition is dismissed.

Decedent died on August 17, 2008 survived by two children, the parties herein. His will was duly admitted to probate on October 10, 2008 and letters testamentary and letters of trusteeship issued thereupon to petitioner and respondent. Said letters remain in full force and effect.




Pursuant to the pertinent provisions of decedent's will, all tangible personal property was bequeathed to his children, with two trusts created to dispose of the remainder of his estate. One, a generation skipping trust (GST), created for his grandchildren, with income payable quarterly and principal distributions payable incrementally when each grandchild attains a certain age, namely 25, 30 and 35. The other created with the residue of the estate for the lifetime benefit of decedent's children, with net income payable quarterly and the remainder payable to decedent's grandchildren, per stirpes. The trustees have no invasion power concerning the GST and may only invade principal of the residuary trust for the health, education, maintenance and support of the beneficiary.

Petitioner has submitted copies of two documents which she seeks to enforce compliance, to wit: an agreement and a release. A review of the documents reveals a significant deviation from the testamentary plan envisioned by decedent, including the payment of principal assets either directly to a beneficiary or utilizing the trust as merely a conduit for a principal distribution. Both mechanisms appear to violate the terms of the respective trusts.

Although parties are free to resolve their disputes without judicial intervention, once recourse is sought in this court, the court is obligated to review the agreement and determine whether same is consistent with the testamentary intent expressed by decedent (see Matter of Wentworth, 230 NY 176). Here, it appears that the intent of the parties was to circumvent the constraints placed upon the bequests by decedent. For whatever his reasons, decedent chose not to bequeath all of his property outright to his beneficiaries, instead providing a stream of income to his children and grandchildren. Notably, no one objected to the admission of decedent's will to probate and, in point of fact, decedent's children were its proponents. Thus, it seems that the same people appointed to ensure the decedent's intent was followed are now seeking to avoid its directives.

If these trusts were uneconomical or there existing some




other justification for early termination, the court entertain a proceeding for such relief (see Estate of Horton, NYLJ, May 27, 2010, 20, (col.6)). The parties and beneficiaries involved in this matter offer no explanation or reason for termination or modification of the trusts' terms. Having reviewed the papers submitted in support of the parties' respective positions, it appears that the sole purpose for their agreement was accelerating their respective interests through post-mortem planning.

Based upon the foregoing, the court finds that the parties agreement to undermine and thwart the intent of the decedent is unenforceable and of no effect. Accordingly, the motion for summary judgment is denied and the cross-motion is granted solely to the extent that the underlying petition is dismissed.

This decision constitutes the order of the court.