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construction", we conclude that a New York court would invalidate
the transfers in the present case. The court would apply the
rule set out in Semmler v. Naples, supra, and invalidate
purported gifts by the attorney-in-fact absent explicit authority
in the power of attorney instrument. The power of attorney in
the present case did not explicitly or implicitly authorize
Marsha to make gifts of decedent's funds. Thus, no valid gifts
were made and decedent retained the right to the funds. We
further conclude that the New York Court of Appeals would be
particularly reluctant to imply broad authority in Citibank's
standard two-page fill-in-the-blanks form.
Petitioner argues that a New York court might ratify the
gifts because they benefit the estate by reducing its Federal
estate tax liability. It bases its argument on Matter of Cohen,
an unreported Surrogate's Court opinion. The court stated:
To the extent the petition seeks the ratification of
various gifts amounting to sums far in excess of the
annual exclusion made by the attorney-in-fact on behalf
of Rose J. Cohen during the years 1985 through 1993,
the relief requested is denied. The power of attorney
heretofore described was executed in statutory short
form and contains no expressed power for gift giving.
In these circumstances, the power of attorney conferred
no such authority upon the attorney-in-fact and those
gifts were accordingly unauthorized and their
ratification is denied (Moglia v. Moglia, 114 AD2d
347). * * * [N.Y. Law J., August 17, 1993, at 26.]
This language is subject to varying interpretations.
Petitioner contends that the court in Matter of Cohen ratified
the gifts to the extent they did not exceed the annual exclusion
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