Seidel v. Werner,

81 Misc. 2D 220, 364 N.Y.S.2D 963, aff'd on opinion below, 50 A.D.2d 743, 376 N.Y.S.2d 139 (1975)

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Nature of the Case

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Facts

Decedent was the life beneficiary of a trust, and had a testamentary power of appointment with respect to the trust. He entered into a separation agreement with his second wife (P), in which he promised to exercise his power of appointment to establish a trust for the benefit of the two children of his second marriage. The agreement provided that P was to receive the income from the trust and use it for the benefit and maintenance of the children until they turned 21. The separation agreement was incorporated into the divorce decree. Later, decedent executed a will in which he exercised his power of appointment in favor of his third wife (D). The court found that the provisions in the separation agreement regarding the exercise of the power of appointment constituted a contract to exercise a testamentary power of appointment, and were therefore invalid. It further found that the incorporation of the separation agreement into the divorce decree did not change this result. P, therefore, argues that the separation agreement should be construed as a release of the power of appointment and that the children should be allowed to take on default of appointment.