- 45 - at the time of distribution to my said trustees shall be at least equal to the amount of this bequest." Mr. de St. Aubin further provided: "My Executors, hereinafter named, shall have the power and sole discretion to satisfy this bequest wholly or partly in cash or in kind and to select the assets to be included therein". Thus, he clearly chose the aggregate approach of funding the marital trust, which is the basis for EPTL section 2-1.9. We reject respondent's argument that Mr. de St. Aubin's intent to provide for decedent overrides his explicit instructions regarding the funding of the marital trust. We doubt whether such a general intent, if it did exist, would be sufficient to satisfy the proviso that EPTL section 2-1.9 will be applicable "unless the instrument expressly provides otherwise". EPTL sec. 2-1.9(b). In any case, we find that Mr. de St. Aubin's will expresses no intent to require that decedent share in the appreciation of the estate assets. Mr. de St. Aubin could have chosen to bequeath his entire estate outright to decedent. He also could have chosen to leave her a fractional bequest. He did not choose to do so. Mr. de St. Aubin provided for decedent by making extensive specific bequests to her, which ensured that on his death in 1967, she would receive property withPage: Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Next
Last modified: May 25, 2011