- 39 -
(2) Where a will or trust agreement
authorizes the fiduciary to satisfy wholly or
partly in kind a pecuniary disposition or
transfer in trust of a pecuniary amount and the
instrument requires the fiduciary to value the
assets selected by the fiduciary for such
distribution as of a date other than the dates
of their distribution, the assets selected by the
fiduciary for that purpose, together with any
cash distributed, shall have an aggregate value
on the dates of their distribution amounting to
no less than, and to the extent practicable no
more than, the amount of such testamentary
disposition or transfer in trust as stated in,
or determined by the formula stated in, the
instrument. [Emphasis added.]
The major impetus for the enactment of EPTL section
2-1.9 was the need to protect unwary New York residents
from Rev. Proc. 64-19, 1964-1 C.B. (Part 1) 682, which
threatened to deny the marital deduction to certain
estates unless the will in question or State law placed a
floor on the value of the assets distributed to the spouse.
However, EPTL section 2-1.9 also added a ceiling ("to
the extent practicable") on the value of the assets
distributed, a feature not required by Rev. Proc. 64-19.
Implicit in this ceiling is a rejection of the fairly
representative approach of In re Bush's Will.
The legislative history of EPTL section 2-1.9 supports
this interpretation. Shortly before the enactment of EPTL
section 2-1.9, New York set up a commission to analyze its
existing estate law and to suggest amendments. Writing as
Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 NextLast modified: May 25, 2011