Surrogate McGinty Daniel G. Heppner, Esq. (Rusk Wadlin Heppner & Martuscello, LLP), as attorneys for Selimendia Nicomedia Aguilar Loza, Sandra Veronica, Lizarraga de Lavayen, Yacqueline Lorena Lizarraga Aguilar, Gabriel Armando Lizarraga Aguilar and Jasmine Catherine Duchen Lizarraga, beneficiaries/petitioners Rebecca M. Blahut, Esq. (McCabe & Mack, LLP), as attorneys for Mitchell L. Jaiven, Esq., trustee/respondent Ephie Trataros, Esq. (The Trataros Law Firm, PLLC), as attorneys for Marianne Salerno, respondent.
ESTATE OF GABRIEL AGUILAR (A/K/A GABRIEL ORLANDO AGUILAR LOZA), Petitioners; MITCHELL L. JAIVEN, TRUSTEE, AND MARIANNE SALERNO, Respondents (14-578/D) — This is a decision on a petition seeking to terminate a testamentary trust (the “Trust”) under EPTL 7-1.19 on the grounds that its continuation is economically impracticable or to reform or permit equitable deviation from its express terms. The Trust was created under the terms of Article THIRD of the Last Will and Testament (the “Will”) of Gabriel Aguilar dated August 9, 2011, which was admitted to probate by this Court’s decree dated December 23, 2014. Article THIRD of the Will directs the trustee to hold testator’s residuary estate in trust, collecting and receiving the income therefrom and managing, investing and reinvesting the same, and making distributions as follows: A. $25,000 annually to testator’s sister, Celia Celimendia (“Celia”)1 during her lifetime; B. Upon the death of Celia, $10,000 annually to Celia’s daughter, Veronica Lizarrara (“Veronica”)2 during her lifetime; and C. Upon the death of Veronica, the principal and accumulated income to the children of Veronica in equal shares per stirpes. Letters of trusteeship were issued to respondent Mitchell L. Jaiven, Esq. (“Trustee”) on December 23, 2014. He reports that the present balance of the trust is approximately $3,700,000. Celia, who is now 74 years of age, has received her annual payments without interruption since letters testamentary and letters of trusteeship were issued to respondent. Celia’s daughter, Veronica, who will succeed her as the recipient of annual Trust payments, is now 53 years of age and has no children or issue thereof. Petitioners are Celia, Veronica and her siblings Yacqueline Lorena Lizarraga Aguilar (“Yacqueline”) and Gabriel Armando Lizarraga Aguilar (“Gabriel”), and Yacqueline’s daughter, Jasmine Catherine Duchen Lizarraga. Petitioners contend that creating a remainder interest in the Will for the issue of Veronica was a “material mistake,” resulting in the circumvention of the testator’s intent. At age 53, Veronica contends she is unlikely to bear or adopt children. Indisputably, if Veronica dies without issue, distribution of the remainder of the Trust will be guided by the laws of intestacy. Petitioners note that if Veronica lives to her mid-80′s, as actuarial tables would indicate, testator’s distributees will have to wait 30 years to receive their shares3. The petitioners seek an order reforming the Trust or a finding that it is terminable as uneconomic under EPTL 7-1.19 so that, in either event, the Trust may be terminated and a distribution of its proceeds made to the current income beneficiary, Celia. Respondent Trustee4 seeks an order dismissing the petition under CPLR 404(a) upon its objections in point of law that the testator’s Will created testamentary annuities which are incapable of being invaded or, alternatively, that petitioners have failed to state a cause of action.5
