Surrogate Nora Anderson
Decedent’s granddaughter, Hammerschlag, the beneficiary of a testamentary trust, sought to compel the trustee to make discretionary distributions to her. She also sought to remove him, claiming his refusal to make such distributions was a breach of his fiduciary duty, and made in bad faith. Decedent created a trust for Hammerschlag’s benefit, but the trustee was granted sole and absolute discretion in paying over income and/or principal for Hammerschlag’s use. The 26 year old Hammerschlag alleged she had no assets, no means of support, and was homeless. She claimed the trustee made no independent investigation to determine her needs, and acted in bad faith in refusing any discretionary distributions by merely relying on information received from her mother, from whom she was estranged. The court noted it could not state the trustee met his burden of proving entitlement to judgment, recognizing the discretion given to him was broad, but ruling same was not unbounded. It stated, viewing the record, there appeared a question of fact if the trustee failed to exercise his independent judgment or adequately evaluated Hammerschlag’s needs before refusing to distribute trust funds. Summary judgment was denied and a hearing was ordered on the petition’s allegations.
