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Wills, Trusts & Estates Keyed to Sterk
Aoki v. Aoki
Citation:
29 N.Y.S.3d 864 (2016)Facts
Rocky established the Benihana Protective Trust (BPT) in 1998 to manage assets related to Benihana, naming his attorney, Darwin Dornbush, and two children, Kevin and Kana, as trustees. The trust included a provision granting Rocky the power to appoint assets after his death through his will.
In 2002, after Rocky married Keiko Aoki, his children raised concerns about the lack of a prenuptial agreement. A postnuptial agreement attempt failed, and attorney Shaw suggested Rocky execute a partial release of his power of appointment, limiting it to descendants. Rocky signed the partial release in September 2002, further restricting the power in December due to IRS changes.
In 2003, Rocky drafted a codicil to his will that gave Keiko 25% of the trust assets, but Shaw advised this was invalid because of the September release. Rocky later expressed that he was unaware of the consequences of the releases. In 2007, Rocky executed a new will, attempting to exercise his power of appointment, but also made provisions in case the releases were found valid. Rocky passed away in 2008, survived by Keiko and six children. At no time before his death did he seek to invalidate the September or December releases.
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