IN RE: the Proceeding for the Restatement of the Lost Trust of Helen E. PINNOLA (2026)

In this miscellaneous proceeding, Robert Kapuscinski and Donald Kapuscinski (the petitioners) have filed a petition to restate the lost trust of Helen E. Pinnola, known as the Helen E. Pinnola Living Trust created under Trust Agreement dated January 8, 2007, as restated March 29, 2007 (the Trust). The petitioners also seek a declaration that the Webster Bank not-for-profit/interest checking account no. XXXXXX6664, and the real property located at 74 Landing Road, Glen Cove, New York 11542 (the Glen Cove Property) constitute the res of the Trust. The petitioners seek the appointment of the Public Administrator of Nassau County, or such other person, bank or trust company, as the court may deem suitable and qualified, to act as successor trustee to complete the administration of the Trust.

Helen E. Pinnola (Helen) died on June 13, 2017. Helen's spouse, Angelo Pinnola, predeceased her having died on April 24, 1997. Helen purportedly executed the Trust on January 8, 2007, which was thereafter restated by Helen on March 29, 2007, between Helen, as grantor, and Helen and Angelo's son, Brian Pinnola, as the initial trustees of the Trust. Helen also executed a will dated January 8, 2007 (the Will). The Will is a pour-over will, which directs that Helen's probate estate shall pour over into the Trust.

The Will and the Trust were both prepared by Joseph A. Fisher, Esq., who has submitted an affirmation in support of the petition. The terms of the Trust provide that during Helen's lifetime, the trustees shall distribute the principal and income of the Trust as they deem appropriate. Upon Helen's death, pursuant to Article Seven of the Trust, the following amounts are to be distributed from the Trust: (i) $25,000 to Robert; (ii) $10,000 to Donald; (iii) $10,000 to Helen's nephew, John Kapuscinski, and (iv) $10,000 to Helen's niece, Denise Kruger. Pursuant to Article Ninth, the remainder of the Trust is to be distributed as follows:

“Section 1.Division into Separate Shares

All trust property not previously distributed under the terms of my trust shall be divided as follows:

Beneficiary Relationship Share

BRIAN PINNOLA Step-son 100%

Section 2.Distribution of Trust Shares for My Beneficiaries

The share of each beneficiary who survives me shall be distributed as follows:

a. Distribution of Trust Share for BRIAN PINNOLA

The trust share set aside for BRIAN PINNOLA shall forthwith terminate and my Trustee shall distribute all undistributed net income and principal to BRIAN PINNOLA, free of the trust.

If BRIAN PINNOLA should predecease me or die before the complete distribution of the trust share, the trust share set aside for BRIAN PINNOLA shall terminate and my Trustee shall distribute the balance of the undistributed net income and principal to his issue, per stirpes. If BRIAN PINNOLA [shall] not have any issue, then the trust share set aside for BRIAN PINNOLA, shall be distributed [to] my nephews, DONALD KAPUSCINSKI and ROBERT KAPUSCINSKI, equally (50/50) to share and share alike.

If none of the aforementioned individuals shall survive me, my Trustee shall distribute the balance of the trust share in accordance with the provisions of Article Ten of this trust.”

Robert and Donald are named as the successor trustees of the Trust. After Helen's death, her step-son, Brian continued to act as trustee of the Trust until his death on January 2, 2024. Robert and Donald have both renounced their nomination as successor trustees.

After Brian's death, neither the original Trust Agreement creating the Trust, nor an executed copy could be found. After a period of time, Mr. Fisher, the attorney drafter, ultimately located an unexecuted copy of the Trust Agreement in his computer files.

According to Mr. Fisher, the Trust Agreement was signed by Helen and Brian in Mr. Fisher's office on January 8, 2007 in his presence, and he notarized each of their signatures. At that time, Helen also signed a deed transferring the Glen Cove Property to the Trust, which was recorded on January 24, 2007. Mr. Fisher also states that Helen and Brian executed the restated Trust in his office on March 29, 2007, and he notarized their signatures. At the same time, Helen and Brian executed an Affidavit of Trust certifying the identities of the trustees and that the Trust was in full force and effect. The affidavit was signed in Mr. Fisher's presence and he notarized their signatures. The affidavit also attached and incorporated certain selected provisions of the Trust.

Mr. Fisher states that it is his practice not to maintain signed copies of executed documents, and in accordance with such practice, he did not keep signed copies of the Trust or any other of Helen's estate planning documents in his files. As it is the policy of his law firm to release all original estate planning documents to his clients at the time of execution, he provided the originals to Helen. Mr. Fisher also confirmed that he did not maintain a digital or electronic copy of the executed Trust Agreement and that the only documentation related to the Trust Agreement that remains in his possession is a copy of the unexecuted Restatement of Trust.

In support of the petition, the petitioners have submitted a copy of the deed transferring the Glen Cove Property to the Trust, and an account statement for the period ending March 31, 2025 from Webster Bank. The statement is for a checking account titled “Helen E. Pinnola Living Trust” with a balance of $22,522.20.

Lastly, Mr. Fisher states that, at no time after March 29, 2007, did Helen ever contact him to revoke the Trust nor did he receive any requests from any attorney purporting to represent Helen.

ANALYSIS

Pursuant to the EPTL 7-1.17, for a valid inter vivos trust to exist, the trust agreement “shall be in writing and shall be executed and acknowledged by the person establishing such trust, and unless such person is the sole trustee by at least one trustee thereof in the manner required by the law of this state for recording of a conveyance of real property, or in lieu thereof executed in the presence of two witnesses who shall affix their signatures to the trust instrument” (EPTL 7-1.17 [a]). To qualify for recording, New York requires an instrument conveying real property, such as a deed, to have an acknowledgement of proof made by, among others, a notary public (NY RPL § 298 [1][d]).

Currently, New York law provides for proving and probating lost wills, but does not have a corresponding provision for proving or establishing a lost lifetime trust. There is pending legislation which seeks to add a provision SCPA 1510 to Article 15 of the SCPA to provide a mechanism for establishing the existence of a writing creating or amending a lifetime trust which was lost or destroyed. SCPA 1407, which sets forth the requirements for proving a lost will, provides some guidance for proving a lost or destroyed inter vivos trust. Pursuant to SCPA 1407, a lost or destroyed will may be admitted to probate only if:

1. It is established that the will has not been revoked; and

2. Execution of the will is proved in the manner required for the probate of an existing will; and

3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

The proponent of a lost or destroyed will has the burden of proof to establish that the will was not revoked by the testator (Matter of McKenna, 213 AD3d 765, 766 [2d Dept 2023]); (Matter of Marotta, 137 AD3d 787, 788 [2d Dept 2016]). The proponent must provide clear and convincing evidence of the provisions of the will and that it was in existence at the time of the testator's death. Where the proponent of the instrument can provide an unsigned copy of the instrument identical to its executed counterpart as well as the testimony of the attorney-draftsperson, the courts have held that the proponent has established prima facie evidence of the clear and distinct provisions of the instrument.

While there is no provision for proving and establishing a lost or destroyed inter vivos trust, there is, however, some New York caselaw that provides a corresponding mechanism to address a lost trust (Matter of Greene, NYLJ, April 1, 2013 at 23, col 3 [Sur Ct, Kings County]). In Matter of Greene, the court held that the “absence of the executed original of a trust agreement, pursuant to which a trust was established does not prevent the finding that a valid trust exists, where certain essential elements are amply demonstrated.” The essential elements of a trust are: (i) a designated beneficiary; (ii) a designated trustee, (iii) a clearly identifiable res, a fund or other property sufficiently designated or identified to enable title of the property to pass to the trustee; and (iv) actual delivery of the fund or property, with the intention of vesting legal title in the trustee (Matter of Doman, 68 AD3d 862, 863 [2d Dept 2009]; Matter of Marcus Trusts, 2 AD3d 640, 641 [2d Dept 2003]. Where all four elements are established, the New York courts have found that a valid lifetime trust exists, despite the lack of an original or copy of the trust instrument (Matter of Marcus Trusts, 191 Misc 2d 497, 499 [Sur Ct, Nassau County 2003]), affd in part, dismissed in part, 2 AD3d 640, 641 [2d Dept 2003], see also Matter of Doman, 68 AD3d 862, 863 [2d Dept 2009]).

The petitioner in Matter of Greene offered the following evidence to establish the elements of a valid trust: (i) a copy of an abstract of the trust signed by the decedent and acknowledged by his attorney; (ii) an unexecuted copy of the trust agreement; (iii) copies of two executed deeds reflecting the transfer of property to the trust and the date on which they were filed; and (iv) an attorney affirmation wherein the attorney-draftsperson stated that he prepared the trust agreement, that it was duly executed by the decedent under his supervision, that the decedent retained the original executed trust agreement, that a search of his records did not reveal a copy of the executed trust agreement, that the unsigned copy of the trust instrument that the attorney-draftsperson retained in his files was identical in every provision to the original executed trust agreement that the grantor signed and was attached to his affirmation, and that he is unaware of any revocation of the trust by the decedent.

In Matter of Marcus Trusts, (191 Misc 2d 497, 499 [Sur Ct, Nassau County 2002], affd in part, appeal dismissed in part, 2 AD3d 640 [2d Dept 2002]), this court held that the absence of an original signed copy of a trust agreement or a photocopy of a signed agreement is not dispositive of whether a valid trust exists. This court also noted that it was undisputed that the trust had been administered since the date the trust agreement was purportedly executed, and that the unsigned trust agreement contained all of the necessary provisions to create a trust.

The currently pending Lost Trusts bill (A3381), seeks to add SCPA 1510 to SCPA Article 15 in order to provide a mechanism for establishing a lifetime trust which was either lost or destroyed. The proposed bill codifies that a lost trust may be proven only if it is established that: (i) the execution of the trust and any amendments were enacted in accordance with New York law; (ii) the trust has not been revoked; and (iii) all of the provisions of the trust are clearly and distinctly proved by a copy or draft of the trust proved to be true and complete. In addition, the proposed legislation includes presumptions to aid in proving a lost trust. There is a presumption, unlike in the lost will statute, that the trust was not revoked and a presumption of due execution in the event it is established that assets were indeed transferred during the settlor's lifetime to the trust.

Here, clear and convincing evidence has been presented to establish the existence of the Trust and its valid execution. Helen duly executed an Affidavit of Trust, which attached and incorporated selected provisions of the Trust Agreement. The terms referred to in the Affidavit of Trust are identical to the provisions in the copy of the unexecuted Trust Agreement provided by the attorney-draftsperson.

Additionally, the attorney-draftsperson, who acted as the notary public to the execution of the Trust Agreement, has attested that each and every provision of the copy of the unexecuted Trust Agreement is identical to the executed Trust Agreement. Moreover, the Affidavit of Trust includes true and complete copies of the signature page and the notary public page of the Trust Agreement. The terms of the Trust Agreement provide for: (i) a designated beneficiary; (ii) a designated trustee; (iii) a res; and (iv) actual delivery of the property. The terms of the Trust Agreement, together with the deed transferring the Glen Cove property to the Trust, establish the elements of a valid trust. The copy of the bank account statement further evidences the existence of the Trust and that it was not revoked.

Accordingly, the petitioners, by clear and convincing evidence, have established that the Trust is in full force and effect.

Pursuant to SCPA 1502(1), the court may appoint a trustee or successor or successors whenever there is no trustee able to act. Here, there is no presently acting trustee of the Trust. Accordingly, the court appoints the Public Administrator as Trustee to complete the administration of the Trust upon filing an oath and designation and a bond. The court is taking no position on the distribution of the Trust assets pursuant to Article Nine of the Trust Agreement.

This constitutes the decision and order of the court.

David P. Sullivan, J.