Gurfinkel v. Josi

Goldie Marmor created a revocable inter vivos trust for which her husband, Marten Marmor, was appointed trustee. The sole trust assets were 25 shares of stock that were to be distributed to Goldie’s daughter, Rose Gurfinkel (plaintiff), after Goldie’s death. The trust instrument stated that Goldie solely reserved the right to amend, revoke, or modify the revocable trust during her lifetime and that such reserved powers could not be exercised by any other person. The same day Goldie executed the revocable trust, she also executed a durable power of attorney appointing Marten as her agent. Approximately two years later, Marten amended the revocable trust to remove the stock from the trust and transfer it to Goldie’s son, Josi (defendant), also known as Joseph Marmor. Marten subsequently became incapacitated, and Rose succeeded him as trustee of Goldie’s revocable trust. Goldie then died, rendering the trust irrevocable, and Rose challenged Marten’s amendment to the trust. Rose argued that the trust instrument prohibited Marten from amending the trust because it stated that only Goldie could amend the trust during her lifetime. Josi countered, arguing that the durable power of attorney gave Marten the power to amend the trust because it authorized Marten, in his capacity as agent, to transfer and convey Goldie’s assets to the trustee of her revocable trust or to any nominee selected by the trustee to receive Goldie’s assets. The trial court upheld Marten’s amendment to the trust, and Rose appealed.