- 24 - principal, pursuant to Mr. de St. Aubin's will. In the alternative, petitioners argue that if the will does not control the allocation of the sales proceeds from the Modern Globe assets, the amended, 1987 version of EPTL section 11-2.1(k) (the 1987 provision) applies, rather than the version in effect at the time of decedent's death (the 1965 provision). However, petitioners argue that the Modern Globe stock was not underproductive within the meaning of either version of EPTL section 11-2.1(k), and, therefore, application of the statute would not affect the allocation of the proceeds from the sale of the Modern Globe assets. As a final alternative, petitioners argue that the delayed income provision does not apply in any event because EPTL section 11-2.1(e)(6) (McKinney 1967), which requires that proceeds from liquidation of stock be allocated to principal, is applicable and overrides EPTL section 11-2.1(k). Respondent argues that summary judgment is not warranted because there are unresolved, material questions of fact that will affect the resolution of this issue. Respondent argues that EPTL section 11-2.1(k) applies because Mr. de St. Aubin's will and his overall estate plan indicate no clear and explicit intent to override the delayed income provision. Respondent contends that thePage: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: May 25, 2011