In re Marcus Trusts , 747 N.Y.2d 187 ( 2002 )

In the early 1970’s, the appellant Roberta Serota Doben executed powers of appointment over four trusts in favor of her brother Arnold Marcus. The appointments were irrevocable. In 1997, Roberta exercised her power of appointment over these same trusts in favor of her husband, the appellant Irwin H. Doben, and her son, the appellant Steven Serota. Shortly thereafter, Arnold Marcus purported to exercise the powers of appointment granted to him by Roberta’s earlier exercise. The trustee then commenced this proceeding to determine the validity of the various exercises.

The Surrogate’s Court properly rejected the appellants’ argument that Roberta’s exercise of her powers of appointment in the early 1970’s was invalid. The existence of a family relationship does not, per se, present a presumption of constructive fraud or undue influence. Rather, there must be evidence of other facts and circumstances showing inequality or controlling influence (see Feiden v Feiden, 151 AD2d 889, 891), and here there was no such showing.

The appellants’ remaining contention is without merit. Feuerstein, J.P., Krausman, Luciano and Crane, JJ., concur.