Surrogate: Dog Groups Barking Up The Wrong Tree
This is my third “dog pun” post in as many years.
If you’ve read this blog since its inception, or have merely been sniffing through the archives, then know that real estate heiress Leona Helmsley left $12 million in her will in trust for her four-legged friend, Trouble. She also created a charitable trust valued at between $5-8 billion. In a two-page mission statement, she expressed her desire that the trust funds be used for the care and welfare of dogs.
In my post dated December 31, 2008 -- titled “Leona’s Wishes May Be Thrown To The Dogs” -- I opined that a court might construe the mission statement as constituting merely a precatory request, not a mandatory directive. On February 26, 2009, in my post titled “A Sop For Cerberus”, I reported that in an “advice and direction” proceeding, New York County Surrogate Troy Webber had indeed decided that Ms. Helmsley’s trustees had the discretion to distribute the funds to charities as they saw fit, not just to canine causes.
Not content to let sleeping dogs lie, however, four animal welfare charities sought to intervene in the proceeding after the fact and vacate the court’s decision. They argued to the court that their causes were insufficiently protected by the New York State Attorney General and that they should have an opportunity to be heard in the matter. However, in a Decision and Order dated April 15, 2011, Surrogate Nora Anderson denied their application.
Essentially, the court found no reason to depart from the general rule that possible trust beneficiaries or members of a class of possible beneficiaries do not have standing to participate in court proceedings to enforce the provisions of the trust. The court also rejected the proposed intervenors’ argument that they fell within a narrow exception to that general principle, affording standing to a particular group with a special interest in funds held for a charitable purpose. Instead, as the court explained, by statute the Attorney General is conferred with the authority to represent all possible unnamed charitable beneficiaries. Further, the court rejected the charities’ argument that the Attorney General failed to doggedly protect their interests.
This decision will no doubt leave the proposed charitable intervenors a bit dog-eared. But it appropriately -- and thankfully (I’m all out of dog puns) -- brings closure to a nearly 25-year-old saga (in dog years, of course: http://www.onlineconversion.com/dogyears.htm).
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.
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.
