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Surrogate Court Decides Will Construction Case


BD is the brother of the decedent AR and the co-executor of his estate. He seeks a judicial construction of his brother’s will. He was left a 13-year-old cat and $6,000 for the care of the cat. If he is successful in this case, he would stand to receive $700,000.

AR stated in his will, he stated he loved siblings dearly but he made no bequest to them. He stated that the rest of the estate should be put in the Dawe family trust. The purpose of the will and trust was to fund a genealogical website.

To avoid the rule of perpetuities, after that, the money should go to a library in Connecticut.

BD argues that the will is void. He argues that the trust fails to mention any beneficiary and only states a purpose. He feels that the only people that will benefit from his brother’s bequest is their immediate family. He added that there is no rule against perpetuities here as it only applies to charitable trusts.

The library opposes BD’s motive, but concedes that the trust is invalid (Smith v. Cheseborough 176 NY 317, 322 (1903).

The begins by looking at the intent of the testator. His intentions are given full force and effect as long as it can be done without violating any public policy. The intent is evident from reading the will (Matter of Carmen 71 NY 2d 781 (1988), Matter of Prevati 121 AD3d 137 (3d Dept. 2014), Matter of Fabbri 2 NY2d 236 (1957).

The Godfrey Memorial Library is undoubtedly recognized internationally as a resource for genealogical research. In 2002, they created an online research tool. They have added a staff researcher and a family history center in Utah.

The attorney who drafted the will reported that Allan’s thought was neither of his brothers needed the inheritance and specifically wanted the library to receive his estate.

The law says that a trust without a beneficiary is void (Levy v Levy 3 NY 97 (1865). The legislature later created the Tilden Act, which authorized the creation of charitable trusts for the benefit of the public.

The court agrees that the provision 6 of the trust is void because it doesn’t name a beneficiary. Because Allan’s research only benefited his family it isn’t considered charitable in nature.

BD here contended that because the 6th provision fails, the remainder of the estate should go to him. The court here disagrees. When the court was given a choice between two interpretations, the court will choose the intestacy.

Because it doesn’t appear that the invalid trust provisions will disrupt AR’s overall plan, the payment to the library should be paid (Matter of Lyons 271 NY 2004 (1936). The testator’s intent was clear. The adoption of Barry’s argument would run contrary to Alan’s plans (Matter of Scale 38 AD3d 983 (3 Dept. 2007).

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