Documents reviewed: 1. Report of Guardian ad litem filed December 6, 2022. 2. Objections to Probate, as amended, filed December 12, 2022 3. Notice of Motion for Summary Judgment by Daniel G. Heppner, Esq. filed April 11, 2023. 4. Attorney’s Affirmation by Daniel G. Heppner, Esq. filed April 11, 2023, with Exhibits A-F. 5. Attorney’s Affirmation by Jefferson C. Hunt, Esq. filed April 11, 2023. 6. Affidavits in Support of Motion for Summary Judgment by Clara Stanley, Judith Duhl, Wendy Morpurgo, Susan Pollack and Verica Pochkowski, all filed April 11, 2023. 7. Notice of Cross-Motion for Summary Judgment by Joshua N. Koplovitz, Esq. filed April 20, 2023. 8. Attorney’s Affirmation by Joshua N. Koplovitz, Esq. filed April 20, 2023, with Exhibits A and B. 9. Affirmation in Opposition to Cross-Motion by Daniel G. Heppner, Esq. filed May 1, 2023. 10. Affidavits in Support of Motion for Summary Judgment by Mary Beth Weaver (2) and Carol Andolina filed May 1, 2023. 11. Affirmation by Jefferson C. Hunt, Esq. filed May 1, 2023. 12. Affirmation in Reply to Petitioner’s Opposition to GAL’S Cross Motion by Joshua N. Koplovitz, Esq. filed May 3, 2023, with Exhibits. DECISION/ORDER 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. Summary judgment is designed to eliminate from the trial calendar litigation which can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Allegations must be specific and detailed and substantiated by evidence in the record (see Matter of Foranoce, NYLJ, Aug 7, 2000, at 25, col 6 [Sur Ct NY Cty]). Generally, the movant must demonstrate first, that there are no material, triable issues of fact and second, that it has proved its cause of action and is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp, 68 NY2d 320 [1986]). Here, however, both parties have moved for summary judgment, each arguing that there are no issues of fact (Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 [1975]). Therefore summary judgment will be appropriate if, upon all the evidence submitted, it is established that either party is entitled to judgment as a matter of law (Midland Funding, LLC v. Coia, 59 Misc3d 1232(A)[Sup Ct Monroe Cty 2018]). OBJECTIONS. Deficiencies in Self-Proving Affidavits. The GAL had initially objected to the absence of a reference to “restraint” of the testator in the self-proving affidavits of the attesting witnesses. This objection was withdrawn on the further affidavits of the notary and one attesting witness offered by petitioner, which cured the claimed defect in the self-proving affidavits. Deficiencies in Acknowledgments. The Trusts and the Will were signed in Virginia. The 1996 Trust acknowledgment reflects decedent’s appearance before the notary and his acknowledgment to the notary of his signature and identifies the place where the trust was signed. The 2013 Trust ends with a statement that decedent acknowledged his signature and was personally known to the notary public. The GAL argues that the acknowledgements are deficient because they are not in the form for recording a conveyance of real property in New York as required under EPTL 3-3.7. Specifically, the acknowledgements in the Trusts do not include an acknowledgement that the settlor “subscribed the within instrument,” that they did so “in their capacity”, or that “by [their] signature, [they] executed the instrument.” The question before the Court is whether the laws of Virginia invoked by decedent in the Trusts should be applied in this New York probate proceeding under principals of judicial comity. The doctrine of comity is “an expression of one [s]tate’s entirely voluntary decision to defer to the policy of another” (Ehrlich-Bober & Co. v. University of Houston, 49 NY2d 574, 580, [1980] [internal quotation marks and citations omitted]. The central question in this determination is whether deference to another state’s governmental acts is inconsistent with New York’s public policy (Crair v. Brookdale Hosp. Med. Ctr., Cornell Univ., 94 NY2d 524, 528-529 [2000]; citing Ehrlich-Bober & Co. v. University of Houston, 49 NY2d at 580). In general, the situs of a lifetime trust is the domicile of the decedent at the time of death, unless a contrary intention appears (Edrhein v. Mabee, 305 NY 307, 314 [1953]). Here, the decedent expressly directs the application of the laws of Virginia to the Trusts. The application of Virginia law to the question of the formal validity of the Trusts does not conflict with New York’s public policy underlying EPTL 3-3.7 and 7-1.17, in that the “degree of formality” required of revocable trusts in Virginia comports with the stated New York policy of “[helping] the parties involved realize the serious nature of the instrument being executed and [reducing] substantially the potential for foul play” (Senate Introducer Mem in Support, Bill Jacket, L 1997 Senate Bill ch 139 at 8, as cited in Fasano v. DiGiacomo, 49 AD3d 683 [2d Dept 2008]). A decision on the validity of the Trusts and the construction of their terms is therefore to be made according to Virginia law, as designated by the settlor (Shannon v. Irving Trust Co., 275 NY at 102). Petitioner offers the sworn legal opinion of Jefferson C. Hunt, Esq., an experienced trusts and estate practitioner duly licensed to practice law in Virginia. Mr. Hunt opines that the Trust instruments were prepared in accordance with the laws of Virginia, where decedent resided at the time, and that they created trusts enforceable in accordance with their terms. Mr. Hunt cites Virginia statutory law to support his formal opinion that the acknowledgments in the Trusts meet Virginia’s requirements for recordation of real property conveyances, in that they consist of ‘[writings] as to any person whose name is signed thereto with an original signature,…acknowledged by him [in the presence of a notary], or proved by two witnesses in…court, or before [the court clerk]” (Virginia Code 55.1-612 and 612[1]). Following these established principles of comity, the Court finds first that the laws of Virginia control the determination of validity of the Trusts and, second, that the acknowledgments in the Trusts were sufficient to meet Virginia’s statutory requirements for recordation of a conveyance of real property (Shannon v. Irving Trust Co., 275 NY at 105). The Trusts were therefore duly acknowledged for purposes of EPTL 3-3.7 and this proceeding. Effect of 2013 Trust. Under EPTL 3-3.7, a bequest may “pour-over” to a trust from a will admitted to probate provided that “such trust instrument is executed…prior to or contemporaneously with the execution of the will, and such trust instrument is identified in such will.” Here, the 1996 Trust was indisputably executed contemporaneously with the execution of the Will and, applying this Court’s decision on the application of Virginia law, qualifies under EPTL 3-3.7(a) as a pour-over instrument. Objectant argues that the Will identifies only the 1996 Trust as the vessel for distributions after probate. Objectant further argues that notwithstanding that the 2013 Trust, by its terms, is characterized as an “amendment and restatement” of the earlier Trust, its effect was to revoke the 1996 Trust, severing the tie between the pour-over Will and the 2013 Trust. In this respect, objectant argues that the operative 2013 Trust was neither signed “contemporaneously” with the Will, nor was it “identified” in the Will. The GAL relies on Estate of Kneznek, 284 AD2d 698 [3d Dept 2001] to support his argument that the 2013 Trust revoked the 1996 Trust and, as an altogether new trust could not be said to have been “identified” in the Will or executed “prior to or contemporaneously” with the Will. In Kneznek, an inter vivos trust1 which expressly “amends and restates” an earlier such trust was held to “supplant” the terms of the earlier instrument. Notwithstanding that the decision was on a motion for summary judgment “on the issue of revocation,” the language of the Kneznek decision notably avoids the use of the term “revoke.” Since both the pleadings in Kneznek and EPTL Article 7 refer to revocation, the Appellate Division’s use of the term “supplant” in lieu of “revocation” must have been purposeful. To rule that a more recent trust “supplanted” the terms of earlier trusts is not to determine that a revocation took place and therefore the Kneznek decision cannot be said to support the objectant’s position that the 2013 Trust revoked the 1996 Will. The decedent anticipated that his 1996 Trust might be amended at some point, as the disposition of the residue in his pour-over Will is to the 1996 Trust “under the terms in effect at [his] death.” In anticipating the possibility that the trust in effect at his death might differ in some respect from the 1996 Trust, decedent identifies not only the 1996 Trust he signed contemporaneously with his Will, but also any future iterations of the earlier Trust. Consistent with that intent, the decedent did not characterize the 2013 Trust as a revocation of the 1996 Trust. The general principles that apply in will construction proceedings apply in the same manner and with equal force in trust construction proceedings (Matter of Stiefel, 24 AD3d 994, 996 [3d Dept 2005]): the court’s charge is “to ascertain and give effect to the testator’s intent” (Matter of Bonanno, 151 AD3d 718, 719 [2d Dept 2017]). The future amendment of the 1996 Trust was clearly anticipated by the decedent. The decedent, like the Appellate Division, could have used the term “revoke” in the 2013 Trust had it been his intention to revoke the earlier trust, a power expressly reserved to him under each of his Trusts. He did not, and this Court finds that the 2013 Trust’s use of the terms “amend and restate,” distinguishable from the term “revoke,” did not act to revoke the earlier 1996 Trust. The 2013 Trust is merely a further and amended expression of decedent’s testamentary plan, as first elucidated in his 1996 Trust. Viewed in that light, the 2013 Trust was expressly identified in the Will, as required by EPTL 3-3.7(a). DECISION. The Court finds that the 1996 Trust and 2013 Trust were duly executed and acknowledged in accordance with the laws of Virginia and are therefore enforceable in accordance with their terms in this proceeding. The Court further finds that the 2013 Trust did not revoke or terminate the 1996 Trust, serving only to amend and reiterate the terms of the earlier instrument. The 2013 Trust is therefore “identified” in the Will offered for probate and deemed executed and effective as of the date of the 1996 Trust it amends, which was executed contemporaneously with the Will in accordance with EPTL 3-3.7(a). The objections are therefore dismissed in their entirety. The Will shall be admitted to probate and letters testamentary shall issue to petitioner. It is therefore, DECIDED and ORDERED, that the objections to the probate of decedent’s Will are dismissed in their entirety; and it is further DECIDED and ORDERED, that letters testamentary shall issue to Wendy Morpurgo. This constitutes the decision/order of the Court. All papers, including this Order, are hereby entered and filed with the Clerk of the Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry. Dated: June 13, 2023
