Contract analysis

I. EXECUTIVE SUMMARY The purpose of this memorandum is to analyze the trustee succession provisions triggered by the incapacity of Eldon M. Briarwood ("Eldon" or the "Grantor"), the original individual trustee of the Eldon M. Briarwood Irrevocable Family Trust (the "Trust"), and to confirm that the appointment of Margot S. Briarwood ("Margot") as successor individual trustee satisfies all requirements of the Trust in

1. Margot S. Briarwood's acceptance of appointment as successor individual trustee, effective January 22, 2024, properly satisfies all conditions under Article VII of the Trust Agreement and the EPTL. The incapacity certification provided by Dr. Volkov meets the requirements of Section 7.2 of the Trust Agreement, and Margot's written acceptance, delivered to and acknowledged by the institutional co-trustee, completes

2. Caldwell Fiduciary Services Inc. ("Caldwell") continues in its role as institutional co-trustee without interruption. The trustee succession occasioned by Eldon's incapacity pertains solely to the individual trustee position. Caldwell's ongoing service as institutional co-trustee is unaffected by this transition.

3. No court proceeding is required to effectuate the succession. The Trust instrument provides a self-executing mechanism for the appointment of a successor individual trustee, subject to the conditions analyzed at length below. Neither the EPTL nor the SCPA requires judicial approval or confirmation of the succession where the trust instrument itself provides an adequate succession mechanism and the successor truste

4. Margot's dual status as successor trustee and beneficiary is permissible under both the Trust Agreement and New York statutory law, given that she does not serve as sole trustee of the Trust and that Caldwell provides continuing institutional oversight. This memorandum sets forth the detailed factual background, the legal analysis supporting these conclusions, and the procedural steps necessary to complete the suc

II. BACKGROUND A. The Trust Instrument The Trust at issue is the Eldon M. Briarwood Irrevocable Family Trust, an irrevocable inter vivos trust created pursuant to a Trust Agreement dated June 12, 1998. Eldon M. Briarwood executed the Trust Agreement in his capacity as both Grantor and original individual trustee. Caldwell Fiduciary Services Inc. was appointed as institutional co-trustee at the Trust's inception and h

III. ANALYSIS OF TRUSTEE SUCCESSION PROVISIONS A. Article VII, Section 7.2 — Incapacity Standard and Certification

Section 7.2 of the Trust Agreement establishes the standard for determining the incapacity of an individual trustee and the mechanism by which such a determination is made. This provision is the threshold requirement for triggering the trustee succession process: unless the incapacity standard of Section 7.2 is satisfied, the succession mechanism of Section 7.3 is not activated.

Section 7.2 defines "incapacity" for purposes of the Trust Agreement as a determination by the individual trustee's attending physician that the trustee is unable, by reason of physical or mental impairment, to manage the trustee's personal and financial affairs, and that such condition is expected to be permanent. The definition is deliberately self-contained and does not incorporate or cross-reference any statutory

Section 7.3 provides a hierarchy of named successor individual trustees who are designated to serve in the event that the individual trustee is removed, resigns, dies, or is determined to be incapacitated under Section 7.2. The provision is structured as a sequential list of named individuals, each of whom is entitled to serve as successor individual trustee in order of priority. If the first-named successor is unabl

Section 7.3 provides, in pertinent part, that the named successor "shall serve as individual trustee upon acceptance of such appointment in writing delivered to the institutional co-trustee." This language establishes two conditions for the succession to become effective: (i) The named successor must accept the appointment; and (ii) The acceptance must be in writing and delivered to the institutional co-trustee (Cald

Section 7.3 further provides that the institutional co-trustee is directed to "acknowledge receipt of such acceptance and record the succession in the Trust records." This acknowledgment and recording function is ministerial in nature; it does not constitute a condition precedent to the effectiveness of the succession but rather serves as an administrative step to document the transition and maintain the integrity of

IV. REQUIREMENTS UNDER NEW YORK LAW (EPTL) FOR ACCEPTANCE OF TRUSTEESHIP A. Statutory Framework The acceptance of a trusteeship under New York law is governed by EPTL § 7-2.1 and related provisions. EPTL § 7-2.1 provides that an individual nominated or designated as trustee may accept or decline the position. The statute does not impose a rigid formal requirement for acceptance; rather, acceptance may be either expre

1. Written acceptance by the successor trustee. The acceptance must be in writing and must express the successor's intent to assume the duties and responsibilities of the individual trusteeship.

2. Delivery of such acceptance to the institutional co-trustee (Caldwell Fiduciary Services Inc.). The delivery of the written acceptance to Caldwell is the act that completes the succession and vests the successor with the authority of the individual trustee.

3. Acknowledgment by Caldwell of the succession. As discussed above, this acknowledgment is ministerial in nature and is not a condition precedent to the effectiveness of the succession. However, it serves to document the transition in the Trust's records and to confirm Caldwell's awareness of the change in individual trusteeship. In addition to these requirements imposed by the Trust Agreement, we recommend the foll

V. NOTICE REQUIREMENTS TO BENEFICIARIES A. Trust Instrument Requirements

Article VII, Section 7.4 of the Trust Agreement imposes a notice requirement in connection with any trustee succession. Specifically, Section 7.4 provides that the successor trustee must deliver written notice of the trustee succession to all current beneficiaries of the Trust within thirty (30) days of the effective date of the succession. The required notice must identify the following: (i) The departing trustee an

1. Notice to Tobias E. Briarwood. Calderwood & Harkness will draft a formal notice letter for Margot, in her capacity as successor trustee, to deliver to Tobias at his residence at 88 Round Hill Road, Greenwich, Connecticut 06831. Given that Tobias has separately retained Reedlaw & Stein LLP (Janet C. Okonkwo, Partner, 55 East 59th Street, Suite 1800, New York, New York 10022) as of February 5, 2024 to evaluate the T

2. Notice to Nadia Briarwood-Chen. Calderwood & Harkness will draft a corresponding notice letter for delivery to Nadia at her residence at 341 Sterling Place, Apt. 3, Brooklyn, New York 11238. The notice should be sent by certified mail, return receipt requested. To date, Nadia has not retained separate counsel in connection with the trustee succession or the anticipated distributions, and no notice to counsel is re

3. Documentation of Margot's awareness. Because Margot is both the successor trustee and a beneficiary of the Trust, she need not formally give notice to herself. However, a record of her awareness of the succession — which is self-evident from her execution of the Acceptance — should be documented in the Trust's records for completeness. The notice letters should be sent within 30 days of January 22, 2024, the effec

VI. CALDWELL FIDUCIARY SERVICES INC. — CONTINUING ROLE AS INSTITUTIONAL CO-TRUSTEE A. Continuity of Appointment Caldwell Fiduciary Services Inc. was appointed as institutional co-trustee of the Trust upon its creation on June 12, 1998, and has served continuously in that capacity for over twenty-five years. The trustee succession occasioned by Eldon's incapacity affects only the individual trustee position; Caldwell'

Article V, Section 5.1 of the Trust Agreement defines the respective roles and responsibilities of the individual trustee and the institutional co-trustee. The division of responsibilities is as follows: Individual trustee (now Margot S. Briarwood): The individual trustee is responsible for investment direction, including the selection and monitoring of the Trust's investments; distribution decisions, including the e

VII. PROCEDURAL STEPS FOR COMPLETING THE SUCCESSION A. Completed Steps The following steps in the trustee succession process have been completed as of the date of this memorandum: With the completion of these steps, the succession of the individual trusteeship from Eldon M. Briarwood to Margot S. Briarwood has been legally effectuated. The remaining steps identified in Section VII.B below are administrative in nature

VIII. CONCLUSION Based upon our analysis of the Trust Agreement, the Incapacity Certification, Margot's written Acceptance, and applicable provisions of New York law, we reach the following conclusions:

1. The trustee succession has been properly effectuated. The physician's certification of Eldon M. Briarwood's permanent incapacity, issued by Dr. Annette Volkov on December 3, 2023, satisfies the incapacity standard and certification requirements of Article VII, Section 7.2 of the Trust Agreement. This certification triggered the self-executing succession mechanism of Section 7.3.

2. Margot S. Briarwood is properly appointed as successor individual trustee. Margot's written acceptance of her appointment, delivered to and acknowledged by Caldwell Fiduciary Services Inc. on January 22, 2024, satisfies all conditions under Article VII, Sections 7.2 and 7.3 of the Trust Agreement and the requirements of the New York Estates, Powers and Trusts Law. The succession is effective as of January 22, 2024

3. No court proceeding is required. The Trust instrument provides a comprehensive, self-executing succession mechanism that does not require judicial approval, confirmation, or any other court proceeding. The provisions of the SCPA regarding judicial appointment of successor trustees are inapplicable where, as here, the trust instrument designates a successor and the successor has accepted in accordance with the inst

4. Margot's dual status is permissible. Margot's simultaneous service as successor individual trustee and 45% beneficiary of the Trust is permissible under the express terms of the Trust Agreement and under EPTL § 7-2.4, particularly given the continuing co-trusteeship with Caldwell Fiduciary Services Inc., which ensures adequate institutional oversight and prevents any merger of legal and equitable interests.

5. Remaining steps are administrative. The remaining steps — including the execution and circulation of the Certificate of Successor Trustee Appointment, the delivery of beneficiary notices, and the updating of signatory documentation — are procedural and administrative in nature and do not affect the legal effectiveness of the succession. These steps should be completed within the timelines identified in Section VII