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Ulster County, Surrogate's Court: August 2, 2023

Decision & Orders signed:June 13, 2023

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Daniel G. Heppner, Esq. (Rusk Wadlin Heppner & Martuscello), attorneys for Wendy Morpurgo, preliminary executrix Joshua N. Koplovitz, Esq., guardian ad litem for Barbara Duhl, distribute, a person under a disability

ESTATE OF ESTATE OF DANIEL DUHL, decedent (22-676) — In these competing motions for summary judgment, petitioner Wendy Morpurgo (“petitioner”) seeks the dismissal of the objections to probate filed by the guardian ad litem (“GAL”) on behalf of his ward, Barbara Duhl (“objectant”). The GAL responds by cross-petition, seeking summary judgment denying probate to the decedent’s last will and testament dated February 1, 1996 (the “Will”). The Will purports to serve as a pour-over instrument to fund the Daniel Duhl Revocable Trust dated February 1, 1996 (“1996 Trust”). The 1996 Trust was “amended and restated” by a trust agreement dated June 12, 2013 (“2013 Trust”). Article XIV (Governing Law) of each Trust mandates that the trust agreement is to be construed and governed in all respects by the laws of the Commonwealth of Virginia. The objections to probate are grounded first in the EPTL’s formal requirements of a pour-over will’s identification of the subject trust and its requirements for acknowledgment of the settlor’s signature in the 1996 and 2013 Trusts (jointly, the “Trusts”). The second prong of the objections argues that the 2013 Trust’s amendment and restatement of the 1996 Trust revoked the earlier Trust. In that event, objectant argues, the terms of the 2013 Trust would not meet EPTL 3-3.7(a)’s requirements that a trust referred to in a pour-over will be expressly “identified” therein and executed “prior to or contemporaneously” with the settlor’s last will and testament. SUMMARY JUDGMENT.

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