Probate Lawyers said before the Court is the petition of Mr. Dm for the construction of Clause Second of the Last Will and Testament of his mother, Mrs. M. The decedent died June 14, 1984 survived by her son, Dm, the petitioner herein, as her sole distributee. Mrs. M’ Will was admitted to probate by this Court on July 12, 1984.
The entire Will is only five paragraphs long and the dispositive provisions are contained within Clause Second in the form of a Residuary Testamentary Trust given to the Trustee:
“To hold, administer, invest and reinvest for the benefit of my son, DM and to collect the income thereof and pay any lawful expenses incidental to the execution of the trust and to pay out to my son the sum of $500.00 each month until such time when the trust fund is depleted of all its assets. However, in the event that said assets reach a minimum of $2,500.00, the Trustee may in his discretion terminate said trust and after payment of any remaining expenses, disburse remaining moneys to my son above mentioned.”
A New York Estate Lawyer said that the trust does not permit invasion of principal or require termination at any specific time although it does permit the trustee at his discretion to terminate the trust at such time as the principal reaches a minimum level of $2,500.00. In addition to the obvious shortcomings of the trust the primary problem arises from the fact that the assets of the estate are sufficient to produce over $500.00 per month in income which is the limited payment to the beneficiary. Thusly, the trust corpus will never be reduced to $2,500.00 and with no principal invasion permitted the trust will never end. This, of course, is in direct contravention of § 9-1.1 of the Estates, Powers and Trusts Law (the Rule Against Perpetuity).
The petitioner, citing a series of cases, among them, Matter of Harrison, 152 Misc. 234, 273 N.Y.S. 981 (1934), contends that since the trust unlawfully suspends absolute power of alienation for more than lives in being and 21 years, it is void and the corpus passes by intestacy, which in this case will be entirely to the petitioner, since he is the sole distributee of the decedent.
In seeking the construction and interpretation of the Last Will and Testament of a decedent, the Court must endeavor to determine the intent of the testator and once determined that intent prevails over all considerations. This intent must be ascertained not from a single word or phrase, but from a sympathetic reading of the Will as an entirety and in view of all the facts and circumstances under which the provisions of the Will were constructed.
When facing the conflict of testamentary intent versus the statute against perpetuities, the text writers have correctly observed the modern tendency of the courts is to sustain so much of a gift as may be compatible with the particular intention of the testator and with his general testamentary plan and to hold only such portions invalid as necessarily infringe the terms of the statute. This is also in accord with the general statutory presumption contained in EPTL 9-1.3(b) that so far as the Rule Against Perpetuities is concerned, the creator of the estate intended it to be valid.
A Nassau County Probate Lawyer said that a sympathetic reading of Mrs. M’ Will in its entirety and the testimony of the scrivener at the hearing clearly shows that Mrs. M desired to principally benefit her son, Dm, but for reasons of her own choosing did not want Dm to receive the corpus of the trust in a lump sum, and indeed did not even permit principal invasion until the trust had reached a balance of $2,500.00.
The fact that the testatrix made no provision for payment over of the remainder of the trust in the event that the trust was still in existence at her son’s death does not invalidate it. Therefore, following the holding in Matter of Krivan (32 A.D.2d 551, 299 N.Y.S.2d 931), and following the clear testamentary intent of Mrs. M, this Court construes the residuary testamentary trust set forth in Clause Second of the Will to be a trust for the life of Dm, with income in the amount of $500.00 to be paid to the beneficiary each month and any additional income to be accumulated and added to principal annually for the term of the trust. Upon Dm’s death, the trust will terminate and the corpus of the trust, together with any accumulated income, shall pass to those persons entitled to receive D’s property at that time, whether by Will or by intestacy.
A Staten Island Probate Lawyer said that under the Court’s construction, there being no accumulation beyond the prescribed time contained in § 9-1.1 of EPTL, there is therefore, no violation of § 9-2.1 EPTL.
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