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Matter of Levitan

New York Supreme Court, Appellate Division, Second Department
134 A.D.3d 716 (2015)


Facts

George Levitan left a will that created a trust for life for his second wife, Sydelle Levitan (defendant). George had one son, Gary Levitan (plaintiff), from a previous marriage, but Sydelle had no children. George’s will gave Sydelle a testamentary power to distribute the assets remaining in the trust when she died among George’s or Sydelle’s issue in whichever manner Sydelle directed in her own will. If Sydelle failed to exercise her testamentary power of appointment, the remainder would go to five other people George had named in his will. Sydelle probated George’s will, listing the interest that Gary received as “NONE.” Gary petitioned the probate court to interpret George’s will as giving him a vested interest in the remainder of the trust, arguing that the remainder would go to the five other people George’s will named only if Gary had died before his father. Sydelle argued that George’s will already vested the remainder in the five other people named, subject to divestment only if she exercised her power of appointment in her own will. The probate court granted summary judgment in Sydelle’s favor, and Gary appealed.

Rule of Law

Issue

Holding and Reasoning

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