BAEC Bulletin | September/October 2023 | 25
The children are all over 21. They felt that they did not need the full amount of the income of their trusts, and they desired to convert their trusts to 3% unitrusts, so that the excess income could accumulate for the benefit of the remainder beneficiaries. However, EPTL 11-2.4, which authorizes conversion of an income trust to a unitrust, requires that the converted trust be a 4% unitrust. In this case, 4% would exceed the income of the trust, and, thus, not accomplish the aim of the conversion. So, the children instead sought to move the situs of the trusts to South Dakota, because the South Dakota unitrust conversion statute permits the unitrust percentage to be as low as 3% and as high as 5%. Surrogate Judge Mosey ruled that while the Court has the authority to change the situs of a trust subject to its jurisdiction, if the Will does not specifically authorize such a change, the court may approve the change if it is shown to have a beneficial effect. She noted, “Significantly, however, a court is without authority to change the situs of a trust simply because the parties request it.” The Surrogate went on to note the decedent’s ties to New York State, and, further, the fact that the papers filed in the proceeding failed to allege that South Dakota would ultimately permit the conversion. The court pointed out that the decedent’s Will prohibited invasion of principal, and noted that if the trusts were converted to unitrusts, there was the potential for invasion of principal to satisfy a unitrust payment in a year when the income of the trust was below the unitrust percentage. Matter of Flannery, 78 Misc.3d 1240 (Sur Ct, Erie County, 2023) This matter to determine the distribution of wrongful death damages was brought by Jennifer G. Flannery in her capacity as Public Administrator for the Estate of Jan A. Wilde. Mr. Wilde died in an automobile accident, survived by his mother, Carole, an alleged non-marital son, Mickie, and an estranged wife, Judy. The decedent’s mother petitioned the Court to be appointed the Administrator, but said Petition was denied for lack of standing. Ms. Flannery filed a Petition for Limited Administration to pursue a wrongful death claim. Ultimately the wrongful death action was settled and Ms. Flannery brought a proceeding to determine if the non-marital child and estranged spouse were entitled to share in the proceeds. A Court Attorney-Referee heard the testimony of the decedent’s mother, siblings, a longtime friend and Lucy Berkman, Esq. in her capacity as attorney for
the Public Administrator.
Through the testimony the Court determined that decedent had doubts about whether or not he was the non-marital child’s father. Further, the Court determined that the decedent never had any contact with the child. Finally, no personal items, pictures, or letters were found in the decedent’s possessions concerning the child. The non-marital child did not respond to repeated calls or letters, nor did he appear in response to any of the citations or participate in any way. The Court ultimately determined that the non-marital child did not meet his burden to establish his status as the decedent’s son by showing that the decedent had open and notoriously acknowledged him. The Court also heard testimony regarding the claim that the decedent’s estranged wife was disqualified from receiving a share of the wrongful death settlement due to abandonment. The Court determined that, based upon the testimony, the decedent’s mother had met her burden of proof on the issue of abandonment because the decedent’s estranged wife had thrown the decedent out multiple times, was abusive to the decedent and viewed the relationship as ending in 2005 when she stopped communicating with the decedent. As such, the Court determined that the decedent’s wife was disqualified from receiving a share in the wrongful death settlement due to abandonment.
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