## Facts

- George Levitan executed a will dated December 31, 1996, and died on May 20, 2012.
- The will created a lifetime trust for George’s surviving spouse, Sydelle Levitan, giving her the beneficial interest for life.
- The will granted Sydelle a testamentary power of appointment to distribute the trust remainder among a class consisting of George’s then-living issue or Sydelle’s living issue, exercisable only by specific reference in her admitted will.
- The will provided that if Sydelle failed to exercise, or did not fully and effectually exercise, the power of appointment, any unappointed property would be distributed to five specifically named individuals.
- Sydelle petitioned to probate the will and listed George’s son from a prior marriage, Gary Levitan, as having no legacy, devise, or other interest.
- Gary filed a petition under SCPA 1420 seeking construction of the will, contending he held a vested remainder interest in the trust.

## Issues

1. Whether the will granted Gary Levitan a vested remainder interest in the trust remainder.
2. Whether, in default of an effective exercise of the spouse’s testamentary power of appointment, the remainder vested in five named individuals rather than in the decedent’s son.

## Decision

- The Appellate Division affirmed the Surrogate’s Court decree insofar as appealed from.
- The court granted summary judgment to Sydelle and dismissed Gary’s construction petition, and it effectively denied Gary’s cross-motion for summary judgment.
- The court held that Gary did not have a vested remainder interest under the will.
- The court held that the default remainder was vested in the five named individuals, subject to divestment only if Sydelle validly exercised the power of appointment.
- Costs were awarded against Gary, payable personally by him.

## Legal Principles

- A will is construed to effectuate the testator’s intent as expressed within the four corners of the instrument, giving words their ordinary meaning where the language is clear.
- A testamentary power of appointment permits the donee to direct disposition of property within the scope and conditions stated by the will; absent an effective exercise, the property passes under the will’s default disposition.
- Where a will provides a specific default gift in the event a power of appointment is not fully or effectually exercised, the default takers are determined by that clause, and claimed interests inconsistent with the plain text will not be recognized.
- Summary judgment is appropriate in a construction proceeding where the will is unambiguous and presents no triable issue of testamentary intent.

## Conclusion

The court construed the will’s trust and power-of-appointment provisions according to their plain terms, concluding that the son held no vested remainder and that, absent an effective appointment by the spouse, the remainder passed to the five named default beneficiaries.


Matter of Levitan, 134 A.D.3d 716 (N.Y. App. Div. 2d Dep’t 2015)