Giammarrusco

In this probate case, a trust provided that the surviving trustor could exercise a limited power of appointment over specified property in three ways: (1) “by a Will . . . duly admitted to probate,” (2) “by a . . . Codicil duly admitted to probate,” or (3) “by a written acknowledged instrument delivered to the Trustee.” The trust then stated, “[i]f no Will or Codicil purporting to be that of the Survivor is filed for probate within sixty (60) days of his or her death, it shall be conclusively presumed that the Survivor did not exercise this limited power of appointment.” (Italics added.)

The survivor attempted to appoint the entirety of the subject property by delivering an acknowledged instrument to the trustee, intending to give the property primarily to her daughter and grandchildren. After the survivor’s death, no will or codicil was filed for probate within 60 days, raising the question of whether the conclusive presumption provision renders the acknowledged instrument ineffective and giving rise to this litigation.

The daughter intends to argue at trial that the ambiguous language of the limited power of appointment may be reformed or interpreted to give effect to…