SIXTH REPORT OF THE
EPTL-SCPA LEGISLATIVE
ADVISORY COMMITTEE
SYNOPSIS:
I. Introduction.
II. An Overview of the Committee’s Recommendations.
III. Background of the EPTL-SCPA Legislative Advisory Committee.
IV. The Committee’s Report and Recommendations.
V. The New York Uniform Trust Code (which will constitute Article 7-A of the
EPTL).
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I. INTRODUCTION
Over the past few years, the Advisory Committee has been studying the Uniform Trust
Code, which has been adopted in twenty-four states1. The Committee has determined to
recommend that the Code2 be adopted in New York. The Committee contemplates that
the Code would be embodied in Article 7A of the Estates, Powers and Trusts Law and
would be referred to as the “New York Trust Code”.
For the most part, the recommended legislation would codify existing case law and carry
over existing statutory provisions. It is not, however, designed to supplant all existing
trusts-and-estates-related statutes. To the contrary, the default approach would be that
existing statutes in the EPTL and SCPA would remain effective (unless, of course,
modified or displaced by a new provision in the New York Trust Code). Thus, on
occasion, readers will have to consult provisions in the EPTL or SCPA other than those
contained in the New York Trust Code. The Committee strived to include in its Report
cross-references to those existing sections that will remain in effect. In some instances,
the Committee determined not to adopt the Code’s approach, opting instead to retain
current law.
Given the elaborate treatment of trusts-and-estates issues in the EPTL, the SCPA and
New York case law, one might question the rationale for adopting the Code. There are
several justifications that would support a move in this direction: 1. modernization of
law; 2. clarification of exiting law; and 3. greater accessibility for out-of-state lawyers as
well as New York practitioners.
First, because of the dynamic nature of trusts-and-estates law, it is important to revisit the
subject periodically to make certain that statutory and case law principles are compatible
with the needs and requirements of trust settlors, beneficiaries and trustees. Through
careful study of the Code, and a concomitant examination of existing law, the Committee
was able to focus on the treatment of issues in need of modernization. In doing so, the
Committee considered emerging trends across the country and tried to combine these new
approaches with existing law. On the other hand, where necessary, the Committee
determined to categorically reject existing law in favor of the more modern approach.
The second justification for adopting the Code is that it will provide clarification of
existing law. In certain instances, current law is somewhat ambiguous. In reviewing the
Code, together with existing law, the Committee focused on various aspects of current
law that failed to provide sufficient clarity. The Committee anticipates that an adoption of
the Code would resolve much of this existing ambiguity.
1
As of October 2011, the Uniform Trust Code has been enacted in the following states: Alabama, Arizona,
Arkansas, District of Columbia, Florida, Kansas, Maine, Michigan, Missouri, Nebraska, New Hampshire,
New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee,
Utah, Vermont, Virginia, West Virginia and Wyoming. The Uniform Trust Code has been introduced in
Connecticut, Massachusetts and New Jersey in 2011. (See http://www.nccusl.org)
2
When references are made in this Report to the “Code”, it shall be understood as referring to the Uniform
Trust Code.
2
The final justification for adopting the Code is ease of access and the resulting
transparency. To the extent a New York Trust Code would codify and or clarify existing
case law, it would make it easier for practitioners to quickly locate the applicable rule. In
addition, given the reality that trusts often involve settlors, trustees and beneficiaries from
different states, out-of-state practitioners often have the need to consult New York law. In
other words, their familiarity with the structure of the Code based on their practice in
other states will enable them to find and understand with greater efficiency the New York
provision. Thus, with the adoption of a New York Trust Code, trust law will become
more transparent for New York, as well as, out-of-state practitioners.
In Part II, for the convenience of the reader, the Committee provides an overview of the
Code, together with the amendments to the Code recommended by the Committee.
In Part III, the Committee provides background on prior trust-related legislation.
Finally, in Part IV, the Committee sets forth its recommendations.
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II. AN OVERVIEW OF THE COMMITTEE’S RECOMMENDATIONS
Article 1:
Article 1 addresses issues of a general nature and establishes background principles on
which the other articles of the Code are based.
Section 102 sets forth the scope of the Code, making clear that it only applies in the case
of an express trust (whether the trust is charitable or noncharitable in nature). As the
comment under section 102 makes clear, while the Code is designed to be
comprehensive, it does not apply to remedial devices imposed by the law, such as a
constructive trust.
Section 103 provides the definitions that are to be applied throughout the Code.
Section 104 addresses the question of whether a person is deemed to have knowledge of
certain facts.
Section 105 is perhaps the most important section in the Article, if not in the Code. It sets
forth the general rule that the Code is a default statute. That is to say, as a general matter,
the settlor may in the instrument negate a provision in the Code. Most important,
subsection (b) sets forth a series of exceptions to this general rule, under which specified
provisions of the Code may not be displaced by the instrument.
Section 107 provides a choice of law rule, under which a settlor is generally free to
determine in the instrument the jurisdiction whose law will control.
Section 108 provides rules for determining the principal place of administration of the
trust. It also provides guidance concerning the transfer of the trust’s administration to
another jurisdiction.
Section 109 provides rules by which notice under the Code is to be given and waiver of
notice may be accomplished.
Section 111 creates a mechanism under which interested persons may enter into a
nonjudicial settlement agreement with respect to any matter involving a trust as long as
the settlement does not violate a material purpose of the trust and includes terms and
conditions that could be properly approved by a court. Under this provision, the
resignation or appointment of a trustee can be accomplished without judicial intervention
(although, as provided in section 705 of the Code, the requirement under current law that
a resigning trustee seek court approval remains in place in the case of a testamentary
trust).
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Article 2:
Article 2 addresses questions of jurisdiction and venue.
The Committee determined to adopt only sections 201 and 202 of the Code, leaving
matters of subject matter jurisdiction (addressed in section 203) and venue (addressed in
section 204) to be resolved under existing provisions of the SCPA.
Section 201 sets forth, in general terms, the role of the court regarding administration
issues.
Section 202 addresses the issue of personal jurisdiction of trustees and beneficiaries.
Under this section, in the case of a trust having its principal place of administration in
New York, New York courts will have personal jurisdiction over the trustees and the
beneficiaries.
Article 3:
Article 3 addresses the question of virtual representation.
The Committee determined not to adopt the provisions of Article 3, choosing instead to
retain the virtual representation provisions contained in SCPA 315. Accordingly, Article
3 will contain a legend to the effect that the reader should consult SCPA 315 for New
York’s rules regarding virtual representation.
Article 4:
Sections 401 and 402 provide rules for the creation of a trust and the methodology that is
required for doing so. As redrafted by the Committee, these sections do not change
current law.
Under current law, a will is deemed valid if executed in accordance with the laws of New
York or the laws of certain other states deemed relevant by statute. See EPTL section 35.1. There is no similar provision in current law that applies in the case of an inter vivos
trust. Section 403 is designed to fill this void, essentially making the rules in EPTL 3-5.1
applicable in the case of an inter vivos trust.
Section 407 of the Code permits evidence of an oral trust. The Committee determined to
reject this approach and to instead retain current law, under which, as a general matter,
certain formalities must be followed in order to create a valid trust (these formalities are
contained in section 402 of the Code). Since, as indicated, the Code will not affect
remedial devices, the adoption of the Code will not have any impact on the enforcement
of oral promises through application of the constructive trust doctrine.
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Section 408 adopts the provisions of EPTL section 7-8.1 with respect to trusts for pets.
The Committee determined to reject this section of the Code, choosing instead to insert
the existing provision in EPTL section 7-8.1 into this section of the Code.
Section 409 changes the common law rule requiring that only a definitely ascertainable
person may be a beneficiary of a trust. Such a trust, however, may not be enforced for a
period of more than 21 years.
Section 411 provides rules concerning the modification or termination of a trust based on
the consent of the settlor and the beneficiaries (in, some cases, with the consent of the
beneficiaries only). Section 411(a) is designed to replace a similar provision under
current law. See EPTL section 7-1.9. Because, however, of certain tax concerns that have
been raised by this provision, the Committee determined to affirmatively provide that this
provision is a default rule that a settlor can override if concerned about tax consequences.
Section 411(b) embraces the common law rule known as the Claflin doctrine (see Claflin
v. Claflin, 20 N.E. 454 (Mass. 1989). Under this doctrine, even where the settlor has died,
the beneficiaries can cause a modification or termination if all consent, provided that it is
not inconsistent with the settlor’s material purpose in creating the trust. The new
provision would change current law, under which a beneficiary of an interest subject to
spendthrift protection may not secure a modification or termination. In Matter of Sanders,
158 Misc.2d 606, 602 N.Y.S.2d 742 (Sur. Ct., Nassau Co. 1991), the court held that the
existence of such protection suggested that a termination of the trust would be
inconsistent with the settlor’s purpose. In section 411(c), the Code would permit the court
to take into account the fact that an interest enjoys spendthrift protection in determining
the settlor’s purpose, but such protection would not necessarily preclude the court from
granting the requested relief.
Section 412 authorizes the court to modify the administrative or dispositive provisions of
a trust if, because of unanticipated circumstances, it becomes necessary to do so in order
to further the purposes of the trust.
Section 413 provides for the doctrine of cy pres. Contrary to common law, this section
presumes that the settlor had a general charitable intent when a particular charitable
purpose becomes impossible or impracticable to achieve. This section also provides a
limitation on the scope of a direction requiring a distribution from a charitable trust to a
noncharitable beneficiary.
Section 414 permits termination or modification of trusts that are uneconomic. This
section is designed to replace EPTL section 7-1.19.
Section 415 would authorize the court to reform a trust, even if unambiguous, to conform
it to the settlor’s intentions. In order for the court to grant reformation under this section,
clear and convincing evidence would need to be provided. This is not dissimilar from
current law in terms of inter vivos trusts. It represents, however, a significant departure
from current law in the case of testamentary trusts, under which reformation for a
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scrivener’s error is generally not permitted. See Matter of Snide, 52 N.Y.2d 193, 437
N.Y.S.2d 63 (1981).
Section 416 authorizes the court to modify the terms of a trust in order to achieve the
settlor’s tax objectives. This section authorizes a modification or a reformation so long as
it is not contrary to the settlor’s probable intention. The modification or reformation may
also be given retroactive effect. This section may have the effect of broadening the
court’s ability to grant a modification or reformation in order to assist in achieving the
settlor’s tax objectives. For a case addressing this issue under current law, see Matter of
Choate (141 Misc.2d 489, 533 N.Y.S.2d 272) (Sur. Ct., New York Co. 1988)).
Section 417 authorizes the trustee to combine two or more trusts into a single trust or to
divide a trust into two or more separate trusts. While current law authorizes such a
division, see EPTL 7-1.13, there is no existing statutory law on the question of the
combination or consolidation of trusts.
Finally, given the importance of decanting, and the recent decanting legislation adopted
in New York, the Committee recommends that this new provision (EPTL 10-6.6) be
incorporated into this Article as section 418.
Article 5:
Article 5 of the Code deals with the rights of creditors in the case of spendthrift or
discretionary trusts.
The Committee determined to retain current law and, therefore, decided not to adopt
various sections in this Article. Article 5 will contain a legend instructing the reader to
consult CPLR 5205 as well as other sections of existing law (including EPTL sections
10-7.1 and 10-7.2).
The Committee decided to adopt section 501 on a modified basis. As redrafted, this
section would confirm and clarify the current treatment of creditor’s rights in the case of
a discretionary trust under existing case law.
The Committee did decide to adopt section 502 but amended it to make it consistent with
current law, under which interests in a trust are made spendthrift through application of a
default rule. It should be noted that, in one respect, the spendthrift approach under section
502 will be more expansive than under current law; while under current law, a remainder
interest in a trust is not entitled to spendthrift protection unless the trust so provides,
section 502 will confer spendthrift status on such an interest in the absence of a contrary
provision in the instrument.
The Committee also decided to adopt the provisions in section 505 (renumbered as
section 504), which deals with revocable trusts and so-called self-settled trusts (i.e.,
where the trustee is authorized to make distributions to the settlor). This section is largely
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consistent with current law (although it does contain a provision designed to avoid
adverse tax consequences for holders of certain powers under the trust).
Article 6:
Article 6 provides rules for the treatment of revocable trusts. The Committee determined
to, in large part, follow the Code’s approach insofar as this Article is concerned. A few
changes from current law should be noted:
First, section 601 establishes that the capacity standard required for the creation of a
revocable trust is the same as the standard used for determining testamentary capacity
(i.e., capacity to make a will).
Second, section 602 of the Code changes the default rule regarding the revocability of a
trust. EPTL 7-1.16 currently provides that a lifetime trust is irrevocable unless the
instrument provides otherwise. In contrast, section 602 of the Code provides that a trust is
subject to revocation or amendment by the settlor in the absence of a contrary direction.
A settlor who wishes to create an irrevocable trust typically does so in order to
accomplish a tax objective, making it likely that skilled counsel will be involved in the
process and will appreciate the need to explicitly provide, as section 602 requires, a
statement of the settlor’s intent on this issue. In terms of the effective date of this change,
section 602 makes clear that it will only apply to instruments executed after the effective
date of the Code (as discussed below, section 1106 addresses, in general, effective-date
issues, but the commentary provides that section 602 controls on the effective-date issue
concerning revocability).
Third, the method by which the revocation of a revocable trust is accomplished is altered.
Whereas, under existing law, revocation can only be accomplished by following certain
formalities as provided in EPTL 7-1.17(b), section 602(c) of the Code will respect a
revocation even in the absence of any writing if there is clear and convincing evidence of
the settlor’s intent (unless the instrument provides the methodology for revocation). In
the case of an amendment, on the other hand, compliance with certain formalities will
continue to be necessary (i.e., section 602(d) of the Code, by its cross-reference to section
402(d), embraces the formalities currently contained in EPTL section 7-1.17(a)).
Finally, section 604 introduces a new concept, subjecting a claim concerning the validity
of a revocable trust to a statute of limitations. Under this provision, a 3-year statute of
limitations starts to run at the time of the settlor’s death. This statutory period may,
however, be cut short if after the settlor’s death the trustee provides the required notice to
the person seeking to invalidate the trust. Where such notice is given, the claim is barred
upon the expiration of 120 days, making the 3-year statute irrelevant.
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Article 7:
Article 7 of the Code addresses the office of the trustee.
In section 701, rules are provided concerning the methodology by which a trustee agrees
or refuses to serve.
Section 702 addresses the requirement that a trustee post a bond.
Section 703 applies where there is more than one trustee. It provides that a majority of
the trustees may take action even though some trustees opposed the proposed action. It
provides that a trustee may not delegate to a cotrustee the performance of a trust function
where the settlor reasonably expected the trustees to perform jointly. It imposes a duty on
trustees to prevent a cotrustee from committing a serious breach of trust. Finally, it
provides that a dissenting trustee may be able to avoid liability for actions taken by
cotrustees as long as the action is not a serious breach of trust.
Section 704 provides rules for the appointment of a successor trustee where the office of
trustee is vacant.
Section 705 provides rules concerning the resignation of a trustee. While, in the case of
an inter vivos trust, the section follows current law in permitting the resignation without
the approval of a court, it would effect a change in the case of a testamentary trust. The
Committee, however, determined to retain current law in the case of a testamentary trust.
Thus, under section 705 of the Code, as amended by the Committee, court approval
would not be required in the case of an inter vivos trust but would continue to be required
in the case of testamentary trusts.
Section 706 provides rules concerning the removal of a trustee. Notably, it authorizes the
settlor, as well as a cotrustee or beneficiary, to apply to the court for an order of removal.
The Committee determined to retain, as a general matter, current law with respect to
compensation of trustees. In the case of a corporate trustee, however, the Committee
determined to adopt section 708 of the Code. Thus, except in the case of a corporate
trustee, matters of compensation will continue to be governed by existing law (i.e.,
sections 2308 thru 2313 of the SCPA).
Section 709 deals with the trustee’s entitlement to receive reimbursement of expenses.
Article 8:
Article 8 sets forth the duties and powers of a trustee. Sections 801 through 804, in
essence, codify the common law rules concerning the trustee’s duty of care, duty of
loyalty, duty of impartiality and the duty to administer the trust prudently. In addition,
section 809 imposes the duty on the trustee to protect trust property; section 810 imposes
a duty on a trustee to maintain adequate records and to keep trust property separate from
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a trustee’s own property; section 811 requires the trustee to enforce claims held by the
trust and to defend claims held against the trust; section 812 requires the trustee to take
steps to compel a former trustee to deliver property to the trustee and it similarly requires
the trustee to seek redress against a former trustee for any breach known to the current
trustee.
Sections 807 and 808, respectively, deal with delegation by the trustee and the power to
direct the trustee. Section 808 would provide rules concerning the use of trust-protector
provisions in trust instruments, an increasingly common phenomenon. It addresses
questions concerning the duty of the trustee to follow the trust-protector’s direction and
the nature of the trust-protector’s duties.
Section 813 has proved to be somewhat controversial, leading to different approaches
among the states the have adopted the Code. The Committee determined to retain the
common law rule requiring a trustee to respond at reasonable times to a request for
information made by a beneficiary. The Committee also decided to impose upon the
trustee a duty to provide a qualified beneficiary (as defined in section 103(13) of the
Code and renumbered as 103(12)) with a copy of the trust instrument upon request,
unless the instrument provides otherwise.
Section 814 elaborates on the scope of a trustee’s duty concerning the power to make
discretionary distributions. Like EPTL section 10-10.1 of existing law, this section
contains a tax-saving rule designed to prevent inadvertent inclusion in the power-holder’s
gross estate for tax purposes by reason of a distribution power. It goes beyond existing
law in this regard, making clear that a trustee may not exercise a discretionary power to
satisfy a legal obligation of the trustee. (In the absence of this provision, the trust’s assets
could possibly be includible in the power-holder’s gross estate).
Sections 815 and 816 confer a broad range of powers upon trustees as a default matter,
thus replacing the current list of powers contained in EPTL section 11-1.1.
Section 817 contains a new provision dealing with practice in connection with
termination of the trust. It authorizes trustees to provide beneficiaries with a proposal for
distribution, giving the beneficiaries a limited period of time within which to object to the
proposal. It also provides that the trustee is under a duty to make distributions
expeditiously subject to the trustee’s right to retain a reasonable reserve for debts,
expenses and taxes. It also provides that a release given by the beneficiary can be
invalidated if improperly obtained.
Finally, the Committee determined to add section 818 to the Code. This section would
contain the rules currently contained in EPTL sections 7-3.1 and 7-1.11. This section
would not effect a change in current law.
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Article 9:
Article 9 sets forth the Prudent Investor Act. Since the Prudent Investor Rule has already
been enacted in New York, the Committee determined not to enact Article 9 of the Code.
Article 10:
Article 10, in essence, supplies rules concerning the liability of a trustee and the rights of
others, including the beneficiary, as against the trustee. The Article addresses important
issues, for example, how to compute damages where a trustee breaches a duty owed to
the beneficiaries.
The Committee determined to amend section 1002 in order to further clarify the
computation of such damages. In this regard, the Committee determined to provide
guidance for the courts on the question of the so-called anti-netting rule. See Matter of
Lasdon, 11/19/10 NYLJ 25 (Sur. Ct., New York Co. 2011) (discussing the anti-netting
rule and an argument that it has been altered by the adoption of the Prudent Investor
Rule).
Section 1004 provides rules concerning the court’s authority to award legal fees and costs
from a trust or from a party. The Committee determined not to adopt this section,
choosing instead to retain current statutory and case law.
Section 1005 (renumbered as section 1004 of the Code) establishes a new statute of
limitations concerning claims against the trustee. Under this provision, a beneficiary may
not commence a proceeding against the trustee for breach of trust more than one year
after the beneficiary was sent a report making adequate disclosure of information so that
the beneficiary knew or should have known of the existence of a claim. This will be a
significant departure from current law, under which the statute of limitations generally
does not start to run until there has been an open repudiation by the trustee or a
resignation by the trustee. See Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d
195, 868 N.Y.S.2d 563 (2008).
Section 1008 (renumbered as section 1007 of the Code) limits the ability of a trust’s
settlor to exonerate a trustee from liability. The Committee determined not to adopt this
section, but to instead insert the current provision on this issue (EPTL 11-1.7) into this
section of the Code.
Section 1009 (renumbered as section 1008 of the Code) provides rules concerning a
beneficiary’s consent, release or ratification, which is essentially a codification of the
common law.
Section 1010 (renumbered as section 1009 of the Code) creates a limit on the personal
liability, whether in tort or contract, of a trustee. It is worth noting that, under current law,
a similar limitation on liability applies in the case of a personal representative. See Matter
of Burke, 129 Misc.2d 145, 492 N.Y.S.2d 892 (Sur. Ct., Cattaraugus Co. 1985)
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(explaining that EPTL 11-4.7 does not apply to trustees). This section will now provide
statutory rules limiting the liability of a trustee.
Finally, section 1013 (renumbered as section 1012 of the Code) introduces a new
concept, under which a person other than a beneficiary who seeks a copy of the trust, can
be given instead a certification of trust (i.e., a document containing certain information
about a trust but not all of its terms).
Article 11:
Article 11 of the Code provides general rules about severability and the effective date of
the Code. It is important to note that, as a general matter, section 1106 gives the Code
retroactive effect, making it applicable in many instances to existing trusts.
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III. BACKGROUND
In 1990 the Legislature, by joint resolution, created the EPTL and SCPA Legislative
Advisory Committee for the purposes of reviewing the substantive and procedural laws
affecting trusts since the enactment of the EPTL and SCPA, which was brought about
by the Bennett Commission, known as the Temporary State Commission on the
Modernization, Revision and Simplification of the Laws of Estates.
As a result of the Advisory Committee’s research and with the cooperation of many
other organizations, legislation was proposed and approved revising the provisions of
the EPTL and SCPA in order to update the substantive and procedural laws
concerning trusts and estates.
Five reports were submitted to the Legislature. The First dealt primarily with descent
and distribution (EPTL 4-1.1) and the right of election (EPTL 5-1.1). The Second
Report dealt with the SCPA. The Third Report dealt with the Prudent Investor Act.
The Fourth concerned inter vivos trusts and the Fifth covered a new Principal and
Income Act.
Over the years of working on the various issues in order to report to the Legislature,
the Committee from time to time reviewed the progress of the Uniform
Commissioners as it related to various topics dealing with trusts and estates. The
Committee followed the progress concerning a Uniform Trust Code and discussed
whether a project should be undertaken to propose a New York Uniform Trust Code.
After the completion of the Advisory Committee’s work on the five reports, the
Committee considered whether to undergo a project to study a possible proposal for a
New York Uniform Trust Code. After review and consultation with members of the
Legislature, governmental bodies, academics, bar associations and other institutions
that deal with trusts and estates, the Advisory Committee determined that it would be in
the best interest for New York to have compiled a report dealing with the laws of trusts.
The Advisory Committee decided that it would be wise to start from scratch working with
all other organizations in reviewing the Uniform Trust Code rather than preparing a report
and then submitting it to other organizations for review. Accordingly, after determining to
review the Uniform Code and after consultations as previously described, the Advisory
Committee reached out to various organizations to see if they wished to cooperate in a
full review of the Uniform Trust Code and whether or not New York should adopt a code
or make any modifications dealing with New York’s law as it relates to trusts.
After consultation with the various organizations, it was agreed that we would jointly
study the Uniform Trust Code, compare it with New York law, decide whether New York
ought to propose some form of a New York Uniform Trust Code, or make any other
suggestions in order to modernize the law in New York as it relates to trusts.
New York is often cited as an authority in the area of trusts and estates and the
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Advisory Committee and other organizations felt it would be wise for New York to be
in the forefront in modernizing our laws dealing with trusts. Accordingly, an expanded
committee consisting of the members of the EPTL and SCPA Advisory Committee
was created, consisting of representatives from the New York State Bar Association,
the City Bar, the New York State Bankers Association and others, in order to
promulgate a Sixth Report to the Legislature concerning the Uniform Trust Code.
The initial endeavor of the expanded Committee is to submit a report to the Legislature
outlining our research and seeking direction as to whether the Legislature would want
the Committee, as was done in the prior five reports, to submit a final report with
legislation and legislative memos or whether the Legislature would prefer for us to
review and prepare a report for the Legislature to make its own determination.
Accordingly, the Committee undertook a great deal of research and reviewed each
article of the Code in order to prepare an analysis and comparison as to existing New
York law. The Committee’s proposal includes recommendations for changes to New
York law, commentary how the Uniform Code compares to New York law, what
New York law should be retained, and what should possibly be modified by way of
adopting provisions of the Uniform Code in order to provide for modernization of
our laws as it relates to trusts.
The first draft of the proposed code was prepared by the Chair, Secretary and
Reporter, based on all the research submitted by the Committee members and has
been circulated for comment from the Advisory Committee and those other
representatives from other organizations that worked with the Advisory Committee
in studying the Code.
The New York State Bar Association’s Trusts and Estates Section will be setting up
a separate new subcommittee to advise the Legislature on SCPA and EPTL. They
will undertake a full review of the draft and submit recommendations to the
Legislature as we expect other organization will do as well. We expect the State Bar
Trusts and Estates Section will submit a final report with proposed bills and a
legislative memo dealing with the Code.
The Advisory Committee respectfully requests that the Advisory Committee to the
Legislature on EPTL and SCPA be formally disbanded since we have completed our
work by submitting six reports to the Legislature.
The Advisory Committee early on in its existence recommended to the Judiciary,
that an Advisory Committee on SCPA and EPTL be created within Office of Court
Administration. This has been done. They are now an active and productive group.
Now that that has been accomplished, the Committee reviews and proposes
legislation and submits same to the Legislature as authorized by Office of Court
Administration. The Surrogate’s Association also reviews bills and submits their
comments to both the Legislature and the Executive. Several other organizations
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having interests in trusts and estates also submit commentaries to the Legislature and
undoubtedly will continue to do so. With the existence of these groups, together with
input from the State Bar, our Advisory Committee can close down.
Although the OCA Advisory Committee was created several years ago, legislative
leaders asked the Advisory Committee to the Legislature on EPTL and SCPA to
continue because they wanted, in addition to the OCA Committee, an independent
group to report to the Legislature. It is respectfully recommended that the
Legislature give consideration to having the State Bar Association’s Trusts and
Estates Section take over the independent work that had been submitted by our
Committee.
When the Advisory Committee to the Legislature on EPTL and SCPA was created, a
procedure was put in place where the weekly calendars of the Judiciary Committees
of the Senate and Assembly with proposed bills and legislative memos were sent to
the Advisory Committee for comment. It was our charge not only to propose
legislation dealing with SCPA and EPTL, but also to comment on bills originating
form other sources, either proposed by the Legislature itself, or from other
organizations. In addition, the Governor’s Office would send to us bills that passed
the Legislature for our comments. In some instances, a like procedure was in place
for other organizations such as the New York State Surrogate’s Association. In order
to provide the Legislature with broad commentary concerning proposed legislation
submitted by all sources, it is respectfully suggested that the Legislature consider to
reinstate the practice of submitting the Judiciary Committee’s calendars with the
bills and memos to the State Bar Trusts and Estate Advisory Committee, the OCA
Advisory Committee and the Surrogate’s Association, so those organizations can
review proposed legislation and submit commentary prior to any enactments.
Unfortunately, in some instances, commentary was not sought until the bills were
passed and were forwarded to organizations by the Governor for comment. If the
above recommended procedure were to be put in place, we feel a more thorough
review of legislation will take place and will aid in having New York to continue its
recognition as one of the main leaders in the nation in promulgating modern
simplified laws dealing with trusts and estates.
Conclusion
We are respectfully submitting herewith a draft of proposed legislation for a New
York Uniform Trust Code to be enacted as Article 7A of the EPTL for
consideration. We respectfully request that the Legislature review our
recommendations and give considerations to having the New York State Bar
Association Trusts and Estates Committee and other organizations review the
legislation for comment. We recommend in the future that the judiciary calendars
with proposed bills and legislative memos from the Senate and Assembly be
distributed prior to Committee meetings be sent to the New York State Bar
Association Trusts and Estates Section, the OCA Advisory Committee and the
Surrogate’s Association for their comments. Each organization, if they so determine,
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will also submit their recommendations for their own proposed legislation.
We respectfully request that the present Advisory Committee to the Legislature on
the EPTL and SCPA be disbanded and that the Legislature give consideration to
assigning the tasks previously assigned to us to the State Bar Association Trusts and
Estates Section to review proposed legislation.
Respectfully submitted,
EPTL - SCPA Advisory Committee Members:
Hon. C. Raymond Radigan, Chair
John J. Barnosky, Esq., Secretary
Mitchell M. Gans, Esq., Academic Reporter
Hon. Eugene E. Peckham, Treasurer
Hon. John M. Czygier, Jr.
Ira Bloom, Esq.
Adria S. Hillman, Esq.
Linda B. Hirschson, Esq.
Hon. Lee L. Holzman
Andrea Hyde, Esq. (emeritus)
Kenneth F. Joyce, Esq.
Joseph Kartiganer, Esq.
Hon. Louis D. Laurino (emeritus)
Jon L. Schumacher, Esq.
Arthur M. Sherwood, Esq. (emeritus)
Andrew L. Sichenze, Esq. (emeritus)
Hon. Peter N. Wells
The expanded Committee consists of the following members3:
Alexandra Klein, Esq. – Assistant to the Academic Reporter
Andrew L. Martin, Esq. - Chief Court Attorney, Nassau County Surrogate’s Court
Michael P. Ryan, Esq. - Chief Clerk, Nassau County Surrogate’s Court
David J. Arcella, Esq. - New York State Bankers Association
William J. Bosies, Esq. - New York State Bankers Association
Gary B. Friedman, Esq. - City Bar Association
Kevin J. Monahan, Esq. - New York State Bankers Association
3
The Committee acknowledges with gratitude the research assistance provided by the following law
students at Hofstra Law School: Stephanie S. Matar, Ilyssa Spergel and Maayan Vodovis.
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Robert E. Parella, Esq. - City Bar
Jonathan J. Rikoon, Esq. - City Bar
Harvey I. Schneider, Esq.
Joseph M. Samulski, Esq. - New York Bankers Association
Victor D. Xistris -New York State Bankers Association
Hon. John Bonacic - Chairman, Senate Judiciary Committee
Hon. Helene Weinstein - Chairwoman, Assembly Judiciary Committee
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IV. THE COMMITTEE’S REPORT AND RECOMMENDATIONS
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V. THE NEW YORK UNIFORM TRUST CODE
(which will constitute Article 7-A of the EPTL)
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