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In re Estate of Gilbert

New York Surrogate’s Court for New York County
592 N.Y.S. 224 (1992)


Peter Gilbert died with an estate worth over $40 million which he devised in part through an elective share trust for the benefit of his wife and through four trusts totaling the amount of his generation-skipping transfer tax exemption for the respective benefit of his four children. The four trusts for the benefit of his children were completely discretionary. His children were also the remainder beneficiaries of the elective share trust after his wife died. One of Peter’s sons, Lester (defendant), who had converted and moved to Virginia to live with a group of people who practiced his new religion, served on the executor of Peter Gilbert’s estate (Executor) (plaintiff) a notice renouncing his “dispositive share in the estate of Peter Gilbert.” The Executor commenced an action seeking a declaration that Lester’s renunciation was invalid. The Executor asserted that the renunciation violated the decedent’s intent to provide for his son, and that Lester had no interest to renounce because the trust was discretionary, and that he had no interest in the trust unless and until the trustee exercised its discretion and distributed income or principal. Additionally, the guardian ad litem argued that if Lester’s renunciation is valid, then the court should not allow the remainder interests in the trusts to be accelerated since any children Lester has in the future would lose their interest in the trust.

Rule of Law


Holding and Reasoning (Roth, J.)

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