ESTATE OF ARNOLD LEVIEN, Deceased, v. PARVIN JOHNSON, JR., KENNETH IVES, HARLAN LEVIEN and STEPHEN LEVIEN. (83/3059/D) — The will of decedent Arnold Levien established a trust under Article SEVENTH that, as relevant here, benefited his grandchildren, including Stephen and Harlan Levien (“Stephen and Harlan”). By its terms, this trust terminated on February 24, 2013, triggering distribution of the remainder, not to decedent’s grandchildren, but to his “great grandchildren” per capita. The trustees’ petition now before the court seeks, among other things, a declaration that two adult individuals, Kenneth Ives and Parvin Johnson, Jr. (“Ives and Johnson”), whom Stephen and Harlan respectively adopted in Texas in October of 2012, are not members of the class of decedent’s great grandchildren entitled to share in its remainder. Respondents, Stephen, Harlan, Ives and Johnson, prior to answering the petition, have moved to dismiss it for failure to state a claim. This motion arises in the following context.
Stephen and Harlan both suffer from facioscapulohumeral (literally, face, shoulders and upper body) muscular dystrophy and have no natural children of their own. In July of 2010, Stephen and Harlan, because of their ailments, sought to compel the trustees to invade and make certain distributions from the trust’s principal, as, in addition to being income beneficiaries (since their parents’ death), they were also beneficiaries of “such portion of the then principal of said trust as [the] trustees, in their absolute discretion, shall determine and deem advisable, in the event of any serious illness, misfortune or other emergency affecting any such beneficiary.” The trustees and the other beneficiaries there argued that Stephen’s and Harlan’s medical condition is a chronic one, not an “emergency” covered by the language of the trust, and that the trustees could not be compelled to invade principal to provide routine medical care associated with an ongoing illness. Stephen and Harlan also sought to have the trustees set aside a reserve for their future medical needs and to remove the trustees due to a claimed conflict of interest, since the trustees’ issue were also remainder beneficiaries of the trust.
