No "Wiggle Room" In After-Born Statute
In Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), Nassau County Surrogate John B. Riordan declined to expand the reach of EPTL 5-3.2 (the so-called “after-born statute”) to non-marital children known to, or acknowledged by, the decedent after execution of his will.
In Gilmore, a probate proceeding, two non-marital children sought to have their status as beneficiaries determined as a preliminary matter. The parties consented to have the Court assume the truth of the claimants’ allegations for a determination of whether as a matter of law those allegations stated a cause of action entitling the claimants to after-born status.
The decedent died in January, 2007, survived by eleven children, including three from a first marriage, four from a second marriage, and four alleged non-marital children. The propounded will, however, benefited only one child from the first marriage. That child, also the petitioner and named executor, was to inherit the several-million-dollar estate. The claimants were two non-marital children born prior to the decedent’s execution of the will, but allegedly became known to and were acknowledged by the decedent only subsequent to the will’s execution.
The court explained that EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted as a beneficiary a child born after he executed his will -- “If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovided for by some settlement, the after-born shares in the gift to existing children.” Pursuant to an amendment to the statute (which merely codified existing case law), non-marital after-born children who can duly establish their inheritance rights are entitled to the same benefits under the statute as marital children.
The claimants in Gilmore alleged -- and it was accepted as true for purposes of the motion -- that nearly a decade after the decedent executed his will he underwent DNA tests which revealed to him for the first time that he was their biological father. Although the claimants were born long before the execution of decedent’s will, they claimed that as they were only known or acknowledged by their father after execution of his will, they should be accorded the same presumption of inadvertent disinheritance as after-born children.
The Court rejected the claimants’ argument, however, noting that pursuant to the clear and unambiguous language of the statute, a child is entitled to after-born rights only if born after execution of the will. The only reported exception to this rule -- for a child adopted after the execution of a will, even though born previously -- had no application to the case at bar.
Because the language of the statute was clear, speaking only of a “child born after the execution of a last will” (EPTL 5-3.2 [a]), the Court refused to extend the scope of the statute to a non-marital child who is known or acknowledged by a decedent only after execution of his will. “To engraft exceptions where none exist,” according to the Court, “are trespasses by a court upon the legislative domain”
Ask not what your Trustees can do for you...
One of the great things about contributing to a legal blog is that you get to write about court decisions that, although not particularly noteworthy for the legal ground they break, are really entertaining to read. One such decision recently emanated from the United States District Court for the Southern District of New York.
In Kennedy v. Trustees, Will of President John F. Kennedy, 08 Civ. 8889 (S.D.N.Y. June 19, 2009), Judge William H. Pauley III dismissed an action in which the plaintiff, John Fitzgerald Kennedy, alleged that he was the illegitimate son of the late President John F. Kennedy and Marilyn Monroe. Although not the basis for its dismissal of the action, the court noted that the plaintiff had no documentary evidence of his kinship claim, despite the fact that he attached a photograph of himself to his complaint, showing his resemblance to President Kennedy. And, in case you were wondering, the plaintiff’s name at birth was John Ruben Burton; he changed it in 1994. You really can’t make this stuff up.
The plaintiff’s initial complaint sought an order directing genetic testing of two members of the Kennedy family (Robert Fitzgerald Kennedy, Jr. and Congressman Patrick Joseph Kennedy) and, upon confirmation of his claim through such genetic testing, an order compelling the Trustees of the testamentary trust created under President Kennedy’s Last Will and Testament to “honor their fiduciary duties.” The Trustees moved to dismiss the action, for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. The plaintiff’s amended complaint, filed after the motion to dismiss was briefed and argued, dropped the claim for genetic testing, instead requested an order compelling the Trustees to investigate his claim of kinship and his entitlement to an inheritance.
The court dismissed the action because plaintiff’s claim, for breach of fiduciary duty, was legally insufficient. The court first considered whether the Trustees would owe the plaintiff a fiduciary duty if he were successful in establishing that he was in fact President Kennedy’s son. In doing so, the court applied Massachusetts law, as President Kennedy was domiciled in Massachusetts at the time of his death, and section 3-5.1 of the New York Estates, Powers & Trusts Law provides that “[i]nterpretation of a testamentary disposition of personal property shall be made in accordance with the local law of the jurisdiction in which the testator was domiciled at the time the will was executed.”
The court explained that prior to 1987, Massachusetts law provided that words as such as issue, children, and the like meant only children born of a lawful marriage, absent anything indicating a contrary intent (see Decision at 7 [quoting and citing Massachusetts authority]). And the will at issue (executed long prior to 1987) contained nothing to suggest that President Kennedy intended to include non-marital children as beneficiaries. Therefore, the court concluded, the plaintiff would not be entitled to inherit under the will even if he were able to prove that he was President Kennedy’s son. As the Trustees could not owe the plaintiff a fiduciary duty, the claim for a breach thereof was legally insufficient and subject to dismissal.
From the perspective of the trust and estate litigator, the court’s analysis of the probate exception to federal diversity jurisdiction warrants some discussion. The probate exception was once described as “one of the most mysterious and esoteric branches of the law of federal jurisdiction” (Dragan v. Miller, 679 F.2d 712, 713 [7th Cir. 1982]). A full discussion of the probate exception is beyond the scope of this blog entry, although you can click here for an article providing more information. Suffice it to say that the exception prohibits federal courts from “interfering with [a] probate proceedings or assum[ing] general jurisdiction of the probate or control of the property in the custody of the state court”(Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735, 1747 [2006]).
Judge Pauley analyzed the scope of the probate exception, determining that the plaintiff’s request for an order compelling the Trustees to investigate his kinship claim was not barred by the probate exception because it neither sought to have the court interference with a probate matter nor exercise control over a res in the custody of a state court (see Decision at 6). If such investigation ultimately established that that the plaintiff was President Kennedy’s son, however, the court would not be permitted to determine the plaintiff’s claim to his inheritance under the President’s will, as to do so would be to exercise control of a res in the custody of a state court (see id.).
While this case may not break any new legal ground, it is worth reading for the court’s analysis of the probate exception to federal diversity jurisdiction -- always an interesting read for the estate litigator -- and for pure entertainment value. Whoever said that life is stranger than fiction was right on the money.
Court Rejects Executor's Attempt to Sell House To Herself For $10
The real estate market might be bad, but it’s not that bad.
In Matter of Karr, NYLJ 2/5/09 (Surrogate’s Court, Kings County), Surrogate Maria López Torrez canceled a deed by which the executor of an estate attempted to convey to herself, in consideration of $10, a house owned by the estate. You can’t make this stuff up.
The defendant in the action, Joan Melluso, was the executor of her father’s estate. He died in 1977, leaving his house in equal shares to his daughter and son, Joan and Donald. He also granted Joan a life estate in the house, and included a clause in his will providing that “[t]he choice when and if to sell shall be hers.” In 2004, Donald died intestate, leaving a wife and four children. In 2007, Joan, in her capacity as the executor of her father’s estate, conveyed the property outright to herself for $10.
Donald’s wife and children filed an action in Supreme Court seeking, among other things, a declaration that the deed conveying the house to Joan was invalid and that they retained a 50-percent tenancy-in-common interest in the house. They moved for summary judgment. Joan cross-moved to transfer the action to Surrogate’s Court. The court denied the motion for summary judgment without prejudice and granted the cross-motion to transfer. Ultimately, the fully briefed motion for summary judgment was submitted for decision to the Surrogate.
Joan, who was represented by counsel, opposed the motion on numerous grounds. She submitted an affidavit that the court, in its decision and order granting the motion, quoted at length. I do so here as well, mostly in the interest of entertainment:
I believe that the disputed clause in the will allows me to take title to the Property. The clause says that the choice “if or when to sell” shall be mine. There is not time limit, price limit, or other consideration. The interest given to me and my brother is subject to the “condition.” The deed says that there was a consideration of ten dollars. There is no other way to interpret the will than to say that this is a sale allowed under the will. There is no proof that the price is in anyway unfair. The truth is that all parties concede I have a life estate, and that I have to pay to maintain the property. Given my life expectancy, and the money I have already paid, the present value of a remainder interest, even if there is one, is nothing. Certainly, there is no evidence to the contrary on this motion. Furthermore, plaintiff assume in paragraph 8 of the moving affirmation that there is a “tenancy in common” created by the will. If there was, then the will would have said so. It was drafted by a lawyer, and if this was the intended result, it would be there. As I stated above, it was my belief that if I survived my brother the house would be mine. If I sold when we were both alive, then the profits would be divided. Also even though I was “responsible” for expenses, it is my belief that if my brother were alive, I would get my money back that I spent before we divided the profits. If the maintenance costs were some sort of rent, the will would have so stated.
Of course, in interpreting a will, courts are guided, primarily, by the intent of the decedent. “There are many instances wherein the Court is called upon to render its interpretation of will provisions that are ambiguous. Fortunately, this is not one of those instances,” wrote the Surrogate. On the contrary, the court determined that the decedent’s intent was crystal clear from the language of the will; he wanted to make a gift of the house equally to both his children.
Addressing Joan’s reliance on the provision of the Will stating that “[t]he choice if and when to sell shall be hers,” the court noted that “there is nothing to indicate that plaintiffs’ interest in the property would be lost or forfeited should defendant decide to exercise this option.”
The court also rejected self-serving, hearsay evidence offered by Joan -- the only evidence offered in opposition to the motion -- consisting of her own affidavit stating that Donald had promised her that the house would be hers, that she would be reimbursed for expenses, and that his heirs told her that they wanted to give her the house. (The court noted that this evidence would have been inadmissible at trial under the Dead Man’s Statute, but could be considered for the purpose of opposing a motion for summary judgment. For more on this topic see this article.
Finally, Joan argued that inasmuch as she had sold the house to herself, it was no longer an asset of the decedent’s estate and, therefore, the court lacked jurisdiction to entertain the matter. Talk about chutzpah. The court found this argument “especially egregious” and “untenable.” It noted that it had “rarely encountered such a blatant attempt to subvert a testator’s intent.” Moreover, the court quite appropriately characterized the argument as “baffling” because Joan herself had successfully petitioned the Supreme Court to transfer this matter to Surrogate’s Court in the first place.
Accordingly, the court summary judgment in the plaintiffs’ favor, directed the cancellation of the subject deed, and directed defendant -- in her individual capacity-- to pay plaintiffs $5,000 as reimbursement for the costs of bringing the litigation. (Curiously, the court -- without much explanation -- denied that branch of the plaintiff’s motion that sought removal of the defendant as executor of the decedent’s estate.)
There is much to be learned from this case. But perhaps the most important lesson is this: “An executor must discharge his or her fiduciary duties so that all legatees are treated in like manner and without prejudice or discrimination” (quoted from decision). As the court noted, “[d]efendant failed this test.” Another lesson might be, if it sounds too good to be true, it probably is.
Court Considers Estate Planning Documents In Deciding Corporate Dispute
This post concerns a decision issued by a Supreme Court Justice in a complex corporate dissolution proceeding. It highlights the importance of familiarity with estate practice, even if you never plan to step foot into a Surrogate’s Court.
In Matter of Pappas v Corifan Enterprises Ltd., NYLJ 2/19/09 (Sup. Ct. Kings County 2009), the issue was whether the Petitioner -- the surviving spouse of the decedent -- had standing to petition for dissolution of two closely held corporations. Respondent argued that the decedent -- and, thus, the Petitioner -- lacked the requisite 20 percent ownership interest in the corporations. He argued that he was the sole owner of the corporations. After a hearing limited to the issue of standing, at which the court heard 14 witnesses testify over eight days and admitted 48 documents into evidence, the court determined that the Petitioner met her burden of demonstrating an ownership interest in one corporation, but not the other.
The substantive legal aspects of the decision are beyond the scope of this post (although an article published by my colleague, Peter Mahler, on his New York Business Divorce blog, contains an excellent discussion of the same). What should be of interest to the trust and estate litigator is the evidence the court analyzed in reaching its determination.
First, the court started by addressing the evidentiary value of admissions made by the fiduciary of an estate:
Where, as here, one of the principals is deceased, “the admissions or declarations of administrators and executors may be evidence - where they are made while engaged in the performance of a duty pertaining to the estate in a representative capacity, in which the declaration is pertinent and accompanies the act so as to constitute a part of the res gestae.” Estate tax returns and certifications can, therefore, constitute admissions of the deceased. The probative value of the statement is to be assessed in the light of the personal knowledge of the representative, and, in any event, the statement is not conclusive, but constitutes “some evidence” (citations omitted).
Indeed, the court considered evidence of the Petitioner’s knowledge of her husband’s business interests. Curiously, the court made no mention in the decision of New York’s “Dead Man’s Statute” (CPLR 4519), which makes testimony by an interested witness “concerning a personal transaction or communication between the witness and [a] deceased person or mentally ill person” excludable “[u]pon the trial of an action or the hearing upon the merits of a special proceeding[.]” The surviving spouse is certainly an “interested witness”, notwithstanding that she is the fiduciary of the estate. Perhaps the court did not consider the “standing” hearing to be a trial or hearing “on the merits” of the proceeding. Or perhaps the court considered applicable the “fiduciary” exception to the rule (see John M. Greenfield, A Treatise of Testimony Under § 347, Civil Practice Act § 120 [1923] [“Where executors or administrators sue or are sued as representatives of the estate, and the adverse party is not a personal representative, the general rule is that the testimony of an executor or administrator in behalf of the estate is not considered to be in his own behalf or interest even though he has a personal interest in the estate as legatee or heir and to that extent might be said to be testifying in his own interest.]).
Second, the court considered documents prepared by the attorney who assisted the decedent with his estate planning. Specifically, the court considered an “Asset Questionnaire” that the attorney prepared using information provided by the decedent. The questionnaire was prepared approximately four months before the decedent’s death. The page in the questionnaire headed “Stocks” and the page headed “Interest in Corporation, Partnership and Limited Partnership” were both blank. The attorney testified that the decedent mentioned no businesses or properties in which he had an interest. But the attorney also testified that:
[T]here came a time when I started the information for the assets questionnaire and . . . I mentioned something about the fact that I understood that he was an employee of Mr. Fotinos. . . He stopped me immediately and said no, no not employee. Business partner. Business associates. Not employee.
Since the attorney was never asked, and did not explain, the apparent inconsistency between the decedent’s statement and the absence of information in the questionnaire, the court determined that the questionnaire was ambiguous at best.
The court also considered the probate petition and estate tax certification signed by the executor of the decedent’s estate. The petition, prepared by the same attorney discussed above, showed the value of personal property as zero, and the tax certification showed the value of stocks and bonds as zero. Those values, according to the court, were evidence as to the executor’s understanding of the decedent’s business interests. The court determined, however, that the probative value of the evidence was undermined by the ambiguous Asset Questionnaire in preparing the petition and tax certification.
In the end, the court determined that the decedent had an ownership interest in one corporation, but not the other. Again, how and why the court reached that determination -- which seems a lot like King Solomon’s threat to “split the baby” -- is not the focus of this article (again, Mr. Mahler’s article provides a detailed analysis of the merits of the case). But the fact that the court considered the estate planning documents significant should not be overlooked. Would a commercial litigator necessarily think to subpoena a decedent’s estate planning file in attempting to gather evidence of the decedent’s stock ownership? Probably not. But this case stands as an example of how “non-corporate” documents -- estate documents in particular -- can be useful in a corporate dispute.
|
|
A Sop For Cerberus
My post dated December 31, 2008, concerned the trust created by Leona Helmsley, specifically, the two page “mission statement” in which she expressed her desire that the trust funds be used for the care and welfare of dogs and “such other charitable activities as the Trustees shall determine.” My previous post discussed the possibility that the mission statement would not be viewed as a legally binding directive.
While Leona may have been steadfast in her commitment to helping man’s best friend, an article in the New York Times dated February 25, 2009, reports that it is now official -- the mission statement is “all bark, no bite.” In an Order dated February 18, 2009, Surrogate Troy K. Webber (of Surrogate’s Court, New York County) confirmed that the trustees can distribute the money as they deem appropriate. Her determination was grounded in the fact that in addition to expressing Ms. Helmsley’s preference for canine causes, the mission statement also gave the trustees discretion in spending the money.
Executor Granted Advance Payment Of Commissions Despite Prohibition In Will
There really is no substitute for good old common sense.
In Matter of Goldberg, NYLJ 1/15/09, a recent case emanating from the Surrogate’s Court, Nassau County, the court was called upon to decide a fiduciary’s petition seeking the advance payment of his executor’s commission during the administration of the estate.
The court began its analysis with reference to SCPA 2311, which allows a fiduciary to make an ex parte application for advance payment of commissions during the administration of an estate. The court noted that a petition seeking advance payment must allege that absent such payment, either the fiduciary or the estate would “be deprived of substantial advantages under the income tax laws of the United States or the state of New York or that [the fiduciary would] suffer inconvenience or hardship or that all persons whose rights and interests would be affected by the payment applied for applied for are persons under no legal disability and have by acknowledged instrument consented thereto” (SCPA 2311).
In the case before the court, the petitioner alleged that he desired advance payment of commissions for purposes of income tax planning, and because of the potential income tax savings associated with payments spread out over separate calendar years. Moreover, the petitioner alleged that the federal and state estate tax returns were filed; that he elected to pay a portion of the estate taxes in installments pursuant to Internal Revenue Code section 6166; that the undeferred portion of the estate taxes has been paid; and that all specific bequests under the decedent’s will have been paid. Moreover, all the beneficiaries -- none of whom was under a disability -- consented in writing to the application.
Therefore, the court determined that advance payment of commissions was appropriate.
There was, however, one obstacle for the court. The decedent’s will required any fiduciary to serve without compensation. In the ordinary case, according to the court, a fiduciary would have two choices: either decline to serve at all, or serve without compensation. But the court noted that unlike other cases in which courts had so held, in the case before it all the beneficiaries had executed and submitted written waivers confirming their awareness of the provision in the will requiring that an executor serve without commissions, but nevertheless consenting to the payment of a full statutory commission.
This, according to the court, rendered the case before it one of first impression. However, other cases had permitted full statutory commissions upon the consent of the beneficiaries in instances where the executor would not otherwise have been entitled to a full commission, for example, where an attorney-executor would only be entitled to half a commission pursuant to SCPA 2307-a.
Accordingly, the court granted the petition on the consent of all beneficiaries under the will, i.e., the persons who would bear the cost of the commissions. Makes perfect sense, doesn’t it?
Inter Vivos Gifts, Summary Judgment, and the Dead Man's Statute
It might well be an understatement to characterize New York’s Dead Man’s Statute (CPLR 4519) as somewhat “enigmatic,” at least to those practitioners who do not often encounter it. Indeed, the leading treatise on the statute is over three-quarters of a century old (see Greenfield on Testimony under Sec. 347 (CPA) § 61 [1923]).
This article contains a brief overview of the statute and more thorough discussion of its application to motions for summary judgment.
Generally -- and perhaps overly simplistically -- the Dead Man’s Statute renders an interested person incompetent to testify concerning a personal transaction (including a communication) with a deceased or mentally ill person. Such evidence is freely discoverable, however, and may be the subject of testimony at a deposition. Indeed, the rule applies only “upon the trial of an action or the hearing upon the merits of a special proceeding” (CPLR 4519).
But what about a motion for summary judgment, which is the procedural equivalent of a trial on the merits? It has long been the rule in New York that evidence excludable under the Dead Man’s Statute may not be used in support of a motion for summary judgment, although it may be offered in opposition to such a motion, to raise an issue of fact for trial. In Phillips v. Joseph Kantor & Co., 31 NY2d 307 (1972), the New York Court of Appeals held that the general rule permitting the use of such evidence in opposition to summary judgment motions is premised on the rationale that it would be difficult to predict with certainty whether such evidence might be rendered admissible at trial by virtue of a waiver -- intentional or inadvertent -- of the protection of the statute.
However, the Court opened the door slightly to granting summary judgment in a case where the only evidence offered in opposition to the motion would be subject to exclusion under the statute. The Court stated that, “[a]dmittedly, a trial would seem unnecessary if it were certain, in an absolute rather than a pragmatic sense of the term, that there would be no waiver of the statute and that all the proof would be excludable” (id. at 314).
Such was the case in Estate of Steger, NYLJ 11/17/08 (Sur Ct Nassau County Nov. 5, 2008), recently decided by the Surrogate’s Court, Nassau County.
In Steger, a contested accounting proceeding, the objectant -- John -- sought leave to reargue a prior decision of the Court denying his motion for summary judgment. He had asked the Court, among other things, to set aside transfers made by the decedent during her lifetime. John was one of the decedent’s four sons. The transfers weres made to another of the sons, Mark, who was also the executor of the decedent’s estate. Not only were the transfers made to Mark, they were made by Mark. He had the decedent’s power of attorney and utilized it, among other things, to transfer assets from the decedent’s individual accounts to an account held jointly, with right of survivorship, by them both. In opposition to the motion, Mark maintained that this was done at the direction of the decedent. John sought to set aside those transfers.
The Court began its analysis by stating the elements of a gift; the donee of a gift has the burden of proving, by clear and convincing evidence, that there was delivery of the property and acceptance by the donee. In addition, the recipient must also prove the decedent’s donative intent. It was this final element, according to John, that Mark could not satisfy. John argued that the sole evidence offered in connection with that element was Mark’s own testimony concerning the decedent’s intent.
The Court agreed, noting that the sole proof offered by Mark in support of his position was his own statements contained in his affidavit that, “for her own reasons, my mother directed me to make these transfers.”
Discussing the Phillips case, the Court noted that, generally speaking, evidence otherwise precluded by the Dead Man’s Statute can be utilized by a party seeking to oppose a motion for summary judgment. However, it further noted that such proof is deemed insufficient where it is the sole proof submitted in support of the opposing party’s claim. Moreover, the Court noted that John, in his motion papers, repeatedly cited the Dead Man’s Statute, “thus indicating his intent to invoke the statute to exclude the statements at trial.” The Court granted reargument regarding the pre-death transfers, and upon reargument, granted John’s motion for summary judgment.
This decision should serve as a warning to practitioners advising clients with respect to gifts: Think about evidentiary hurdles that might be encountered down the road. Take care to properly document the gift (through writings, gift tax returns, etc.). And, of course, be particularly cautious in advising a client with respect to the use of a power of attorney to make a gift (see generally Matter of Ferrara, 7 NY3d 244 [2006] [gifts made pursuant to a power of attorney must be in the best interest of the principal, including minimization of income, estate, inheritance, generation-skipping transfer or gift taxes]).
Leona's Wishes May be Thrown To The Dogs
If you don’t like dog puns, you might want to stop reading now.
Hotelier and real estate magnate Leona Helmsley loved dogs and she made no bones about it. Leona Helmsley left $12 million in her will in trust for her dog, Trouble. And, although Surrogate Renee Roth reduced the trust to $2 million, that amount should still be sufficient for Trouble to live, well, a dog’s life for her remaining years. (After all, Trouble's annual living expenses have been estimated at only $180,000.)
The amount of the Trouble Trust, however, pales in comparison to the full amount of the charitable trust Mrs. Helmsley created -- valued at between $5 billion and $8 billion. In a two page “mission statement,” Mrs. Helmsley expressed her desire that the money be used for the care and welfare of dogs. (Actually, it has been reported that she initially stated that the money should go to poor people and dogs, but she later turned tail on poor people, dropping them from the list.)
But are Mrs. Helmsley’s trustees required to honor her desire? Can they help the poor and still avoid the doghouse? Probably. It is likely that the expression of intent contained in the mission statement will be viewed as mere precatory language, not a legally binding directive. And, besides, the document reportedly gives the trustees discretion in distributing the money. So the trustees likely won’t have their tails between their legs if they decide to throw a bone to some underprivileged humans.
Precatory language contained in a will or other instrument is merely an expression of the testator’s or grantor’s wishes or desires; it is not legally binding on the person to whom the wish or desire is directed (see In re Samuelson, 110 AD2d 183, 187 [2d Dept 1985]). Whether a provision in a will or trust is mandatory or precatory depends on the language of the provision and the intent of the testator or grantor.
As explained in a leading New York treatise:
Normally words of wish or desire do not create an imperative charge nor limit a gift otherwise provided for in the will. In the absence of a clear expression that the testator intended the language to be dispositive, words indicating a wish or desire or request are ordinarily only words of entreaty that leave obedience, exercise, and performance to the sense of duty, gratitude, and discretion of the one to whom they are addressed. Such person can carry out the admonition of the testator or not as he sees fit. The court has no control over such person’s actions and may not substitute its judgment for that of the person to whom such words are addressed.
11 Warren’s Heaton on Surrogate’s Court Practice § 187.02 (2005).
Courts in New York have recognized that although words such as “request,” “wish,” and “desire” are ordinarily construed as precatory, “they will be taken to connote a hope or command depending on whether the author meant by them simply to advise or inform a discretion which is vested in somebody or to control or direct a certain disposition” (Spencer v Childs, 1 NY2d 103, 107, [1956]).
The frequency with which Mrs. Helmsley used action verbs in her will might give her trustees a “leg up” in determining which provisions are mandatory directives and which are not. Cases from jurisdictions other than New York have concluded that when certain provisions of a will use mandatory language and others use traditionally precatory language, the distinction should be given significance in interpreting the will. In other words, where a testator uses a command verb in one part of his will -- for example, “I direct” -- and a permissive verb in another part -- for example, “I request” -- the permissive clause should be considered merely precatory (see Diana v Bentsen, 677 So 2d 1374, 1378 [Fla Dist Ct App 1996]; O’Brien v McCarthy, 285 F 917, 920 [DC Cir 1922]).
It should come as no surprise to anyone that Mrs. Helmsley was not shy about using command verbs. For example, in her will, Mrs. Helmsley “directed” that her mausoleum be acid washed or steam cleaned at least annually. She also “directed” that, upon Trouble’s death, her remains were to be buried next to Mrs. Helmsley’s remains, in her (presumably freshly acid washed or steam cleaned) mausoleum. And, she conditioned bequests to two of her grandchildren upon their visiting their father’s grave at least once a year -- preferably on the anniversary of his death (hint, hint -- “preferably” = precatory language) -- and directed her trustees to install a guest book inside the family mausoleum in order to enforce the visitation requirement.
While it is sometimes difficult to determine what is and what is not a mandatory directive, in the case of Mrs. Helmsley’s trust, it should not be all that difficult for the Trustees to sniff out the precatory language.
