August 2, 2007

Willkie counsel Governor Mario Cuomo represents two young brothers who were conceived in vitro after the death of their father in a case deciding their rights to share in the family trust fund.

As reported widely in the press including the front page of the August 1 edition of the New York Law Journal, Willkie counsel Governor Mario Cuomo served as Guardian Ad Litem in the Matter of Martin B., a landmark case in the area of trusts and estates.  The case, which was decided by Surrogate Renee Roth of the Surrogate’s Court of the State of New York, dealt with the novel question of whether the “issue” and “descendants” provided for in seven 1969 trusts includes children conceived with cryopreserved semen of the grantor’s late son, known as James B., whose death preceded the conception of his two sons.  This is an issue of first impression posed by advances in biotechnology that obviously could not be considered in the early 1960s when the New York Legislature first drafted the Estates, Powers and Trusts law.  

On behalf of the children, ages three and one, Governor Cuomo argued that the grantor intended to cover all of his “issue” and “descendents” regardless of when conception took place and that the boys should receive their due share in the family fund.    The judge agreed, ruling that “[The] instruments provide that, upon the death of the Grantor’s wife, the trust fund would benefit his sons and their families equally.”   In her opinion, she wrote “In view of such overall dispositive scheme, a sympathetic reading of these instruments warrants the conclusion that the Grantor intended all members of his bloodline to receive their share.”

Praising the decision, Governor Cuomo told the New York Law Journal that it appears the judge will provide the Legislature with a much needed framework to address the important issues raised in the case.

Governor Cuomo worked on the matter with Loretta A. Ippolito, a partner in the firm’s Private Clients Group.


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