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In re Trusts Under Article Fourth of David Wolfenson 1999 Trust

Surrogates Court, Erie County

July 17, 2017

In the Matter of the Trusts Under Article FOURTH of the David Wolfenson 1999 Trust (a/k/a) the David Wolfenson Living Trust) Under an Agreement Dated December 14, 1999, as Amended.

          HODGSON RUSS, LLP Appearing for Petitioner Fidelity Personal Trust Company, FSB Britta L. McKenna, Esq., and Nathan W.G. Berti, Esq., of Counsel

          PHILLIPS LYTLE LLP Appearing for Respondents Zoe Payne, William Fischbein and Nathan Fischbein Sharon L. Wick, Esq., of Counsel

          ROGER B. SIMON, ESQ. Guardian ad Litem for GG

          Barbara Howe, J.

         David Wolfenson [hereafter, David], died on November 2, 2005. David was the grantor of a trust, dated December 14, 1999, which was amended by him on June 29, 2001 [the First Amendment to the David Wolfenson Living Trust], and which he amended again on July 1, 2002 [the Second Amendment to the David Wolfenson Living Trust]. [1]

         Article THIRD of the Trust provides that, if the net remaining assets are not effectively "appointed" by David on or before the date he dies, those assets are to be distributed:

"equally among the class of individuals consisting solely of [David's] great-grandchildren living at the time of [David's] death, specifically the issue of [David's] grandchildren WILLIAM STEWART FISCHBEIN, ALANA SUE FISCHBEIN a/k/a ALANA PAYNE and KELLEY INGER WOLFENSON, subject to the provisions of Article FOURTH" (emphasis added).

         Article FOURTH of the Trust, insofar as relevant here, provides as follows:

"(A) The Trustees shall hold such property, IN FURTHER TRUST, for the benefit of my great- grandchildren living at the time of my death " (emphasis added).

         When David died in 2005, he had not appointed the net remaining trust assets, so that Article THIRD and FOURTH control their disposition.

         Pending now before me is a petition by Fidelity Personal Trust Company, FSB [hereafter, Fidelity], as trustee of the Trust, seeking two forms of relief. First, Fidelity asks that its accounts for the period January 1, 2012 through May 31, 2016 be judicially settled. Second, Fidelity seeks advice and direction from this Court "confirming" that GG, David's great-granddaughter [2] - who was born in 2006, five months after David's death, but who was in utero when her great-grandfather died - is David's surviving great-grandchild within the meaning and scope of Articles THIRD and FOURTH of the Trust.

         The guardian ad litem appointed by me to represent GG's interests supports Fidelity's petition for advice and direction. However, Zoe Payne, William David Fischbein, and Nathan Fischbein [hereafter, respondents] [3], contend that GG is not entitled to take under Articles THIRD and FOURTH of the Trust. In opposing the advice and direction relief Fidelity seeks, and in cross-petitioning for a determination that GG is not a great-grandchild under Articles THIRD and FOURTH of the Trust, respondents maintain that the phrase "living at the time of my death" was not intended to include a great-grandchild who was in utero at the time of David's death, and they further allege that David would not have intended such a result.

         Respondents have reserved their right to reply to the accounting aspects of Fidelity's petition until after the advice and direction issue is resolved. Understandably, GG's guardian ad litem has also not yet addressed that issue.

         Respondents have now moved for summary judgment on the advice and direction application(s), and all parties have filed papers in that regard. I now find and decide as follows.

         (A)

...


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