Richard D. Cirincione, Attorney for Petitioners, Whiteman Osterman & Hanna, LLP, Albany William F. Ryan, Jr., Attorney for Respondent, Tabner, Ryan & Keniry, LLP, Albany
IN THE MATTER OF THE KOSMO FAMILY TRUST. LAURA E. KNIPE WIELAND ET AL., Petitioners, DONNA SAVINO, Respondent (18-235/A) — Janet D. Kosmo (hereinafter decedent) died a resident of California on December 10, 2017,1 survived by two adult children, Laura E. Knipe Wieland (hereinafter Laura) and Richard X. Knipe (hereinafter Richard). Her daughter Claudia Knipe (hereinafter Claudia) predeceased her in 2006, and her husband Joseph R. Kosmo (hereinafter Kosmo) predeceased her in January 2013. She was also survived by two adult grandsons, petitioner Brent Knipe (hereinafter Brent) and petitioner Steven X. Knipe (hereinafter Steven), the sons of Richard. Decedent’s daughter Claudia, who was developmentally disabled, resided in a group home in Albany County prior to her death. Respondent Donna Savino was employed for a time as a health care worker in Claudia’s group home, which is how respondent became acquainted with decedent. In 1994, decedent and Kosmo created the Kosmo Family Trust, naming themselves as the trustees of the trust upon its creation. Under the 1994 trust, after the death of Kosmo and decedent, the trust was to be split in two shares and decedent’s share was to be distributed in general bequests to Steven, Brent, Claudia, and decedent’s brother Robert E. Wendel, with the remainder to Laura. In 2008, decedent and Kosmo executed the Amendment and Restatement of the Kosmo Family Trust dated August 25, 2008, under the supervision of attorney Debra Halvarson Groh. Pursuant to the terms of the 2008 trust, after the death of Kosmo and decedent, decedent’s one-half share would be distributed 90 percent to Richard and 10 percent to decedent’s nephew, Charles Wendel.2 The successor co-trustees named were Kosmo’s brother, William Kosmo, and decedent’s son Richard. Following Kosmo’s death, his one-half share of the trust became irrevocable and his beneficiaries and trustees could not be changed, but decedent amended the terms of her one-half share of the trust, designated as the “survivor’s share,” three times in three years, each time changing the beneficiaries and trustees.3 Pursuant to the first amendment, executed on July 23, 2013, the residue of decedent’s share of the trust was left equally to decedent’s grandsons, Brent and Steven, after a $25,000 gift to respondent and a $25,000 gift to decedent’s friends, Jens Gramer and Sybille Gramer. The first amendment named Steven as the successor trustee to decedent, and Brent as the alternate trustee of decedent’s share. The second amendment, executed March 9, 2015, retained the cash gift of $25,000 to decedent’s friends the Gramers, and left the remainder of decedent’s share to respondent. The second amendment named respondent as the successor trustee to decedent, and Jens Gramer and Sybille Gramer as alternate trustees. Finally, the third amendment, executed July 25, 2016, removed the bequest to the Gramers, and left decedent’s entire share of the trust to respondent. At the time of the execution of the third amendment, respondent was added as a co-trustee and she executed the third amendment along with decedent. Groh drafted all three amendments and supervised their execution. The trust contains a choice of law provision, which provides that California law shall apply to the validity of the trust and the construction of its beneficial provisions, regardless of any change in the residence of the trustee. Following decedent’s December 2017 death, respondent engaged the services of Groh, and on January 9, 2018, respondent issued a notification by trustee to decedent’s heirs under California Probate Code §16061.7, which named her as trustee, and Groh as her counsel.4 In March 2018, Laura commenced a proceeding to invalidate the first, second and third amendments to the 2008 trust alleging, among other things, that respondent exercised undue influence over decedent which resulted in decedent executing the amendments to the 2008 trust, ultimately removing her family and friends as beneficiaries and leaving the entirety of the trust assets to respondent.5 Respondent answered the petition, raising several affirmative defenses including inconvenient forum, and contemporaneously moved to dismiss the petition pursuant to CPLR 327. By decision and order of this Court dated May 29, 2018, respondent’s motion to dismiss for inconvenient forum was denied.
