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Surrogate Court decides a will construction case where the provision of the will creating a trust failed – In re Dawe, 60 Misc.3d 949 (N.Y. Surr. Ct., 2018)


In this case the Surrogate’s Court had to decide how to make sure that a testator’s overall testamentary plan remained intact where a portion of the will is determined to be invalid.

A. Dawe died on March 11, 2014. He was never married and never had children. He was survived by his two brothers, B. Dawe and R. Dawe. However, R. Dawe died in April 2014. The will was admitted to probate in September 2014, with B. Dawe being appointed as co-executor along with J. DeMuro, a friend of A. Dawe

In the will, the decedent made a specific gift to B. Dawe of his 13-year-old cat as well as $6000 to take are of her. The decedent was passionate about genealogy and spent a great deal of time researching Dawe family history. Decedent stated in his will that he is making no additional dispositions to his family. Instead, the decedent directed that the residue of the estate be transferred to the Dawe Family Trust that is to be used to continue and expand a genealogical website that the decedent created, and to create an archive of family genealogical data, photos and heirlooms. The will further provides that 21 years after the death of B. Dawe and his son, E. Dawe, the trust is to terminate and the remaining assets are to go to the Godfrey Memorial Library of Middletown, Connecticut.

In his petition, B. Dawe asks that the Surrogate’s Court determine that the provision creating the Dawe Family Trust is void, and because of that, to declare that as to the residuary estate the decedent died intestate. That would mean that the residuary would go to B. Dawe as the decedent’s sole distributee. In support of his petition and argument that the trust is void and should fail the petitioner pointed out that in created the trust, the decedent failed to name any beneficiary. Instead, the decedent named only a purpose. Further, he asserts that the trust is not intended to be a charitable trust, so that it is not exempt from the requirement that a trust name a beneficiary.

The co-executor, DeMuro, asks the court deny B. Dawe’s petition, asserting that the funds should go to genealogical research. In addition, a cross-petition was filed by the Library in which it concedes that the trust is invalid, but still opposes B. Dawe’s petition. The Library asserts that instead of invalidating the entire portion of the will related to the residuary estate, that it ignore only the provisions that are invalid. The result would be that the Library would receive the residuary of A. Dawe’s estate.

The Surrogate’s Court noted that at common law, any trust without a named beneficiary was void. However, under EPTL § 8-1.1 (f), charitable trusts do not fail because of the uncertainty of the beneficiaries. This rule only applies to charitable trusts and not to private trusts. Because the Dawe Family Trust would be a private trust, the trust provisions are invalid because there is no named beneficiary of the trust.
B. Dawe asserts that since trust provision fails, the related paragraph is also invalid, and as a result, the residuary estate must pass to him based on the laws of intestacy. The Surrogate’s Court disagrees. Because the decedent went to the trouble of executing a will, made specific dispositions to kin and states that that was all he intended to give them, the court chose to interpret the provisions in a way that avoids intestacy. The court concluded that accelerating the remainder interest payable to the Library would not fundamentally change the testator’s overall testamentary plan. As a result, the court denied B. Dawe’s petition and granted the cross-petition of the Library.

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