Surrogate Rita Mella
Trustee of decedent Ferguson’s trust sought to divide the trust into three separate trusts under Estates Powers and Trust Law §7-1.13(a)(3). The trust initially benefitted Ferguson’s daughter, Audrey, and her issue, but upon Audrey’s death, the trust income and principal were payable in the trustee’s discretion to her issue. The court noted the trust terminated upon Audrey’s death. Audrey was survived by her three children and their issue, and all have consented to the division requested in the instant petition. The court found nothing in the trust prohibited the sought division, stating none of the reasons proffered for the division expressly contravened the primary purpose of the trust. It noted, as per statute, each separate trust would be governed by the terms of the original instrument. Further, the court stated the division of the trust assets must be "fairly representative of appreciation and depreciation" and be based on the fair market value of the assets on the date of their distribution to the separate trusts. Therefore, the court directed the equal division of the subject trust into three separate trusts per stirpes, benefitting a child of the original beneficiarydecedent’s daughter, Audrey, and her respective issue.
