Surrogate Peter Kelly

Objectants moved for partial summary judgment on their objections to petitioner’s accounting as trustee of decedent’s irrevocable trust as whether decedent, by executing an instrument purporting to be his will, effectively exercised a power of appointment reserved in the trust. Decedent sought to probate will. A paragraph in the will expressly provided decedent made no provision for objectants as they were sufficiently provided for by their late father’s estate. Objectants asserted decedent failed to exercise the power of appointment in the trust as he did not make "specific reference" to the power of appointment in the will. They alleged Estates, Powers and Trust Law §10-6.1(b) controlled, and as the will contained no specific reference to the power, it was not validly exercised. Petitioner argued §10-6.1(b) was not triggered unless the donor of the power of appointment expressly stated that "no instrument shall be effective to exercise the power" absent such specific reference. The court ruled petitioner’s reading of the statute was contrary to its plain meaning, stating §10-6.1(b) was unambiguous, thus there was no necessity for a construction as petitioner contended. It granted the motion.