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Supreme Court, Suffolk County, May 12, 2010
APPEARANCES OF COUNSEL
Burner, Smith & Associates, LLP, Setauket, for petitioner. Farrell Fritz, P.C., [*2]Uniondale, for David Chiaro and another. Robert D. Gallo, Sayville, for Edythe Chiaro. Lynn Poster-Zimmerman, pro se.
{**28 Misc 3d at 691} OPINION OF THE COURT
H. Patrick Leis, III, J.
In this contentious Mental Hygiene Law article 81 proceeding, one of Edythe Chiaro's four sons, Dennis Chiaro, has moved for an order punishing David Chiaro and William Chiaro[FN1] for contempt;[FN2] compelling David Chiaro and William Chiaro to account{**28 Misc 3d at 692} as cotrustees of the Chiaro Family Revocable Trust and as attorneys-in-fact for Edythe Chiaro; compelling David Chiaro to [*3]amend the Chiaro Family Revocable Trust to include Douglas Chiaro, Dennis Chiaro, David Chiaro and William Chiaro as equal remainder beneficiaries; cancelling and declaring the May 16 and May 24, 2007 amendments to the subject trust null and void; and directing David Chiaro and William Chiaro to pay all expenses and legal fees incurred in this motion.
David Chiaro has cross-moved for an order "vacating that portion of the Stipulation of Settlement, dated August 18, 2008, and the Court's Judgment and Order implementing its terms, dated October 31, 2008, providing for amendments of the dispositive provisions of the Chiaro Family Revocable Trust, dated January 28, 2000, as amended."
A hearing was held on March 8, 2010. Subsequently, the court received a letter dated March 11, 2010 from Jaclene D'Agostino of Farrell Fritz, P.C., counsel for David Chiaro, and accompanying documents reflecting that David Chiaro, "as Property Management Guardian of EDYTHE CHIARO has amended the Chiaro Family Trust."
Although it is concluded, as discussed below, that David Chiaro cannot be held in contempt, the court does not adopt the apparent contention of counsel for David Chiaro that it is his purported amendment of the trust that has relieved him of a finding of contempt.
Background
Although there are many contested issues in this Mental Hygiene Law article 81 proceeding, central to the current application is the Chiaro Family Revocable Trust. Edythe Chiaro and her husband, Ralph Chiaro, were the grantors and original trustees of the trust. A number of amendments were made to the original trust which was executed on January 28, 2000. It was fully amended and restated on November 1, 2002, and there were subsequent amendments.
Acting together on January 9, 2007, Edythe and Ralph amended the trust directing, inter alia, that each of their four sons was to be a 25% remainderman. Thereafter, two physicians treating Edythe Chiaro for Alzheimer's disease, by separate letters{**28 Misc 3d at 693} dated May 10, 2007 and May 15, 2007, stated that Edythe Chiaro lacked the ability to make informed decisions in reference to the management of financial affairs. Ralph Chiaro, pursuant to the terms of the trust (article VII [I]) (discussed in greater detail below) then, acting unilaterally as the remaining, nonincapacitated grantor, amended the trust on May 16, 2007, and then again on May 24, 2007. The May 16, 2007 amendment, inter alia, removed a definition of Edythe and Ralph's children that had excluded David Chiaro. The May 24, 2007 amendment, among other changes, left only William Chiaro and David Chiaro as remaindermen, each with a 50% interest. Ralph Chiaro died on July 20, 2007.
The rights of each of the four sons, as remaindermen of the trust, was a matter on which the parties focused in reaching a compromise of the many contested questions in this Mental Hygiene Law article 81 proceeding.
In the proceedings held on the record before Justice Sandra L. Sgroi on August 18, 2008, the [*4]parties set forth the terms of their stipulation resolving the disputed issues in this Mental Hygiene Law article 81 proceeding. Among those, recited at pages 6-7 of the minutes, was the following: "the Chiaro family revocable trust shall be amended to include all four brothers as equal twenty-five percent beneficiaries." Pursuant to the stipulated terms, the amendment, which was to be prepared by Lynn Poster-Zimmerman, Esq., then counsel for David Chiaro and William Chiaro, was to be signed by September 5, 2008.
After each of Edythe Chiaro's four sons were sworn in, Justice Sgroi specifically asked if they had heard the terms of the stipulation, and whether they all understood and agreed to the stipulation. All four sons responded affirmatively to these questions. Moreover, each son was given the opportunity to ask questions, with each declining to do so. All four agreed to be bound by the terms of the stipulation, and acknowledged that they believed that entering into the stipulation was in the best interests of their mother. Justice Sgroi asked if they had any questions about their responsibilities, and each indicated they had none.
In addition to relying on the stipulation as a basis for amending the trust, Justice Sgroi treated the matter of changing the trust beneficiaries as a disposition of Edythe Chiaro's assets to or for the benefit of another person which was to be considered against the standards set forth in Mental Hygiene Law

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