In re the David Wolfenson 1999 Trust, 56 N.Y.S.3d 848

David Wolfenson created a living trust (1999) and amended it in 2001 and 2002; he died on November 2, 2005 without appointing the net remaining trust assets.
Article THIRD distributed unappointed assets “equally among the class of individuals consisting solely of [David’s] great‑grandchildren living at the time of [David’s] death,” subject to Article FOURTH, which directed trustees to hold property in further trust for those great‑grandchildren.
GG, a great‑granddaughter, was in utero when David died and was born alive in 2006 (≈5 months after his death).
Fidelity (trustee) petitioned for judicial settlement of accounts and for judicial advice and direction confirming that GG is a beneficiary under Articles THIRD and FOURTH.
Respondents (other great‑grandchildren born before David’s death) cross‑petitioned and moved for summary judgment, arguing that “living at the time of my death” excludes a child in utero at death; they relied on asserted intent and extrinsic (religious) evidence.
The guardian ad litem for GG supported Fidelity; the court reserved accounting issues pending resolution of the beneficiary‑construction question.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a great‑grandchild in utero at decedent’s death but born alive thereafter is “living at the time of my death” under the trust	Fidelity: EPTL and case law include children conceived before but born alive after disposition unless creator expresses contrary intent; therefore GG is included	Respondents: Phrase means actually born before decedent’s death; David intended to benefit only those born and personally known to him; extrinsic evidence supports exclusion	Court: Statute and controlling precedents treat in utero but subsequently born persons as "living" for estate dispositions absent contrary intent; David expressed no contrary intent re: in utero descendants; GG included
Whether extrinsic evidence (religious beliefs/Talmudic teachings) may be used to create ambiguity in trust construction	Fidelity: Trust language is clear and statutory law controls; extrinsic evidence not admissible to vary clear instrument	Respondents: Offered extrinsic material to show grantor's intent to exclude in utero descendants	Court: Trust is clear and unambiguous; extrinsic evidence cannot be used to create ambiguity and is therefore disregarded

Matter of Bonanno, 151 A.D.3d 718 (App. Div.) (will/trust construction focuses on testator/grantor intent)
Matter of Cord, 58 N.Y.2d 539 (Ct. of Appeals) (testator’s intent gleaned from the four corners of the instrument)
Matter of Fabbri, 2 N.Y.2d 236 (Ct. of Appeals) (effectuation of testator’s actual purpose governs interpretation)
Matter of Wickwire, 270 A.D.2d 659 (App. Div.) (extrinsic evidence inadmissible to vary clear testamentary language)
Dunham v. Hilco Constr. Co., 89 N.Y.2d 425 (Ct. of Appeals) (standards governing grant of summary judgment)
Martinez v. City of Buffalo, 149 A.D.3d 1469 (App. Div.) (procedural authority cited regarding summary judgment)