Opinion
February 18, 1971
George J. Kohl for Sheila A. McMillan, petitioner.
William Lerner, guardian ad litem.
A petition for the probate of the last will and testament of Daniel F. McMillan, deceased, was filed with this court on January 21, 1971 by petitioner. The petition recites the death of decedent on December 29, 1970 leaving him surviving petitioner and two children, Michael David McMillan, 12 years of age, and Kevin Brian McMillan, 7 years of age, each of whom was adopted by petitioner and the deceased on December 16, 1958 and December 27, 1963, respectively. The will offered for probate was executed by decedent on August 5, 1954 and provided that the entire estate of decedent passed to petitioner. No provision was made therein for after-born children. Pursuant to a hearing on February 4, 1971 it was revealed that a Totten Trust account was established by decedent for each child prior to his death, the balance on each account being approximately $35 at the time of death.
The parties concede that the rights of adopted children shall be identical to that of after-born children. (EPTL 5-3.2.) The issue to be determined by this court is whether the establishment of the Totten Trust account for each child was a sufficient "settlement" to meet the requirements of EPTL 5-3.2 (subd. [a], par. [2]).
As previously decided by this court the question of adequacy of settlement is for the testator and not the court. ( Matter of Georger, 48 Misc.2d 579.) The intent of the testator to provide for the children is manifested by the creation of the trust accounts. Despite the amounts the establishment of the accounts negates a finding of inadvertent disinheritance of the children. A finding of such intent is determinative of compliance with the above section and this court finds that the opening of the above accounts was a sufficient settlement to meet the requirements of said section.
It is accordingly the decision of this court that the two children that were adopted after the date of the execution of the will by the testator have been provided for and that the will herein be admitted to probate as the last will and testament of the decedent and that disposition of the estate be made according to the terms thereof.