Surrogate Kristin Booth Glen

A bench trial was held on the trustee’s petition of the Benihana Protective Trust to decide the validity of two partial releases of a testamentary power of appointment signed by decedent Rocky Aoki. Aoki’s children argued his wife, Keiko, failed to offer any evidence showing Rocky was unaware that he was irrevocably releasing his power of appointment. Thus, they contended a motion directing a verdict against Keiko’s position should have been previously granted at the conclusion of her case under CPLR 4401. The court noted Aoki’s deposition testimony did not touch on the issue of irrevocability of the releases, but stated if favorable inferences must be drawn, it could fairly be read as showing he did not read the releases, and did not read the word “irrevocable.” It concluded Keiko met the test of providing “some competent, credible evidence” that a fact-finder could believe in finding in her favor. Hence, the court concluded the children failed to sustain their burden of showing Aoki signed the releases voluntarily, as opposed to in reliance on misrepresentations, concealment of facts or omissions regarding their irrevocability by his long-time attorney, and thus denied the children’s motion for a directed verdict.