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that EPTL section 2-1.9 does not apply in this situation,
and, therefore, under New York case law, the marital
bequest must be funded under the fairly representative
approach. Respondent also asserts that Mr. de St. Aubin's
executors mishandled his estate and, thus, any discretion
that Mr. de St. Aubin granted to his executors was
"nullified by the executors' failure to expeditiously and
properly administer the estate". The propriety of the
executors' actions is a disputed matter of fact.
Respondent next argues that respondent is entitled to
summary judgment on this issue. Respondent asserts that
Mr. de St. Aubin's will reflects an overriding intent to
provide for decedent. Thus, respondent asserts that she
was entitled to share in the appreciation of the estate
assets. Respondent next argues that the executors' duty
of impartiality dictates that decedent be entitled to share
in the appreciation of the estate. Finally, respondent
contends that, because the actions of the executors
violated "the spirit of the marital deduction", decedent's
estate is entitled to share in the appreciation of the
estate assets.
To better understand the arguments of the parties,
it is necessary to review the evolution of New York State
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