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Wills, Trusts & Estates Keyed to Sterk
Seidel v. Werner
Citation:
376 N.Y.S.2d 139 (1975)Facts
Anna and Frank claim Steven’s entire share of the trust based on a Mexican divorce judgment from December 9, 1963, which incorporated a separation agreement. The agreement required Steven to make a will exercising his testamentary power of appointment over his share of the Abraham L. Werner Trust for the benefit of their children. However, in March 1964, Steven executed a will leaving all his property to his third wife, Edith. Steven died in 1971, and his will was admitted to probate in 1973. The court found that the provision in the separation agreement was an invalid contract to exercise a testamentary power of appointment, as it was not presently exercisable under New York law. Under the terms of the trust instrument, if Steven fails to exercise his power of appointment, Anna and Frank (along with the children of Steven’s first marriage) take the remainder, i.e., the property which is the subject of Steven’s power of appointment.
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