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Koste v. Turski

August 14, 2009

DENISE A. KOSTE, PLAINTIFF-APPELLANT,
v.
ROBERT C. TURSKI, TURSKI & TURSKI, LLC, AND THE ESTATE OF ELEANOR L. TURSKI, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
FIRST AMERICAN TITLE INSURANCE CO., THIRD-PARTY DEFENDANT, AND MERRILL LYNCH CREDIT CORPORATION, DEFENDANT-INTERVENOR.



On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Cape May County, Docket No. C-114-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 7, 2009

Before Judges Fisher and Gilroy.

Plaintiff Denise A. Koste appeals from the September 9, 2008 order that dismissed her complaint seeking to void the transfer of real property out of the Eleanor H. Leberfinger 1999 Irrevocable Trust (the Trust). We affirm.

The facts are not in dispute. Eleanor L. Turski (Turski) is the daughter of Eleanor H. Leberfinger (Leberfinger). Turski and Leberfinger are now both deceased, Turski having died on June 9, 2006, and Leberfinger, having died on October 31, 2006.

Plaintiff is one of Turski's three surviving children. The other two surviving children are defendant Robert C. Turski and Diane Turski, a non-party to the action.

On December 10, 1998, Leberfinger executed a general Power of Attorney, designating Turski as her attorney-in-fact. Paragraph 1 of the Power of Attorney provided:

1. GENERAL GRANT OF POWER

To exercise or perform any act, power, duty, right or obligation whatsoever that I now have or may hereafter acquire, relating to any person, matter, transaction or property, real or personal, tangible or intangible, now owned or hereafter acquired by me, including, without limitation, the following specifically enumerated powers. I grant to my Agent full power and authority to do everything necessary in exercising any of the powers herein granted as fully as I might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that my Agent shall lawfully do or cause to be done by virtue of this power of attorney and the powers herein granted[.]

On September 24, 1999, Leberfinger, through her attorney-in- fact, created the Trust and named Turski as sole trustee. Paragraph 2 of the Trust vested Turski as trustee with absolute discretion to dispose of the income and the corpus of the Trust.

2. DISPOSITION PROVISIONS

The trustees shall hold, manage, invest, and reinvest the [T]rust property, collect the income therefrom, and administer and dispose of the net income and principal of the [T]rust on the following terms:

(A) During the lifetime of the grantor, the trustees may pay to or apply for the benefit of ELEANOR L. TURSKI, primary beneficiary(ies), all, some or none of the net income of the [T]rust, together ...


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