Preview
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a shareholder
or a member of the Company Defendants, Index No.: 657193/2020
Plaintiff,
Motion Sequence No. _
-against- AFFIDAVIT OF ATTORNEY
GARY TANNENBAUM
BREMEN HOUSE INC., GERMAN NEWS REGARDING CONSTRUCTION
COMPANY, INC., BERRIN TEKINER, GONCA OF THE ZEYNEP TEKINER 2011
TEKINER, and BILLUR AKIPEK, in her as DESCENDANTS TRUST
capacity
a Trustee of The Yasemin Tekiner 2011 Descendants
Trust,
Defendants.
ZEYNEP TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Zeynep Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a shareholder
or a member of the Company Defendants,
Intervenor-Plaintiff,
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity as
a Trustee of The Zeynep Tekiner 2011 Descendants
Trust,
Defendants.
(TTLG:2589/0000/002I8521.1}
1 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF MONTGOMERY ) .ss
GARY TANNENBAUM, being duly sworn, deposes and says:
1. I am an attorney duly admitted to the Bar of the State of Delaware. I am a partner
with the Tannenbaum Law Group and a member of the Delaware Bar Association Trust and Estates
19807.1
Section. My firm maintain an offices at 5803 Kennett Pike Suite B-2 Wilmington, DE
2. I have been a practicing attorney for over 29 years, and I have been admitted to the
Delaware bar for over 19 of those years. The majority of my practice is focused on trusts and
estates. My clients include individuals, families, trustees, estates and small companies. I have
drafted, modified, and advised clients on hundreds of trusts, including without limitation revocable
and irrevocable trusts, inter vivos and testamentary trusts, and charitable trusts. The overwhelming
majority of the trusts that I have worked with have been Delaware trusts.
3. I have been asked to opine as to whether Tekiner - as the sole member of
Zeynep
the Trust Committee of the Trust - has the to exercise the powers of the Trust
Zeynep authority
member"
Committee even though there is no "independent of the Trust Committee.
4. As set forth herein, itis my opinion that, as the sole member of the Trust Committee
of the Zeynep Tekiner 2011 Descendants Trust, and pursuant to both Delaware law and the plain
language of the Zeynep Trust, Zeynep Tekiner has the full authority to exercise all powers of the
Trust Committee.
'
I am also duly admitted to the Bar of the Commonwealth of Pennsylvania, where I maintain my
primary office and I am a member of the Montgomery County, PA Bar Association's Probate and
Tax Section. The majority of my practice, however is in drafting, modifying, interpreting and
administering Delaware trusts.
{TTLG:2589/0000/00218521.1} 2
2 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
5. The exceptions to this are (i) Zeynep cannot direct the Trustee to make
only
distributions to satisfy any legal support obligation that she may owe to a beneficiary,
discretionary
(ii) cannot direct the Trustee to make discretionary distributions to herself, and (iii)Zeynup
Zeynep
cannot direct the Trustee to permit herself or caretakers to occupy Trust-owned real property.
(NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH
(B)(13).)
BACKGROUND
6. The factual recitation herein is based upon my review of the Zeynep Trust, along
with other documents in this matter and information provided to me. My analysis and construction
of the Trust is based upon my over 29 years as an attorney practicing trusts and estates law and
over 19 years practicing Delaware law.
7. Berrin Tekiner is the Grantor and Protector of the Zeynep Trust, and Christiana
Trust (a/k/a Bryn Mawr Trust) is the "Trustee",i.e., the Independent Trustee. As the Protector,
Berrin has the authority under Article EIGHTH to appoint and remove members of the Trust
Trust.2
Committee on the terms set forth in the
8. I have been advised that, when this action was commenced in December 2020, and
when Zeynep joined the case as a plaintiff in April 2022, the members of the Trust Committee
were Billur Akipek and Zeynep Tekiner. By way of Decision and Order dated October 19, 2022
NYSCEF Doc. No. 800), the Court removed Billur Akipek as a member of the Trust Committee
of Zeynep's Trust, leaving Zeynep as the sole member of the Trust Committee.
2
Subject to the right of beneficiaries or others to request Court intervention.
{TrLG:2589/0000/00218521.1} 3
3 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
9. After Billur was removed as a member of the Trust Committee, Zeynep issued a
series of directions and requests for documents and information to the Independent Trustee,
Christiana and to the Individual Defendants, Berrin Tekiner, Gonca Tekiner, and Billur
Trust,
Akipek.
10. letter dated November 11, 2022 (Exhibit J to the Zeynep Affidavit), Berrin
By
responded to certain of Zeynep's instructions, alleging that "Zeynep's purported actions as the sole
void."
member of the Trust Committee were and are beyond her authority, invalid and
11. To support her position, Berrin cited Article NINTH (D) (2) and (3) of the Zeynep
Trust. Article NINTH (D) (2) merely provides that whoever replaces Berrin on the Trustee
Committee must be independent, which that section defines independent as someone who is not a
beneficiary, and Zeynep does not claim to be independent. Article NINTH (D) (3) states: "The
Grantor directs that there shall at all times be at least one independent member of the Trust
instrument."
Committee qualified and acting under this
12. Neither NINTH or - nor other provision within the Trust - states
(D) (2) (3) any
that the Trust Committee lacks power to act without at least one independent member. And as set
forth below, numerous provisions of the Trust make plain that the Trust contemplates numerous
situations in which there will be only one member of the Trustee Committee, and in which the
only member or members of the Trustee Committee are not independent. Thus, this Court should
reject Berrin's conclusion that "[t]he Trust Committee has no power to act absent 'at least one
member."
independent
{ TTLG:2589/0000/00218521.1
} 4
4 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
THE SOLE MEMBER OF THE TRUST COMMITTEE, ZEYNEP IS FULLY
AUTHORIZED TO EXERCISE ALL THE POWERS OF THE TRUST COMMITTEE
13. Delaware Courts construe the meaning of Delaware trusts according to rules very
similar to the rules for contract construction. As the Delaware Chancery Court recently instructed:
"When construing a trust, this Court attempts to discern the settlor's intent as expressed by the
instrument, read as a whole, in light of the circumstances surrounding its creation. With that in
mind, '[t]he words used in the [trust] generally are given their ordinary meaning and the Court will
not consider extrinsic evidence to vary or contradict express provisions of a trust instrument that
interpretation.'
are clear, unambiguous and susceptible of only one To determine the ordinary
meaning of words not defined in the instrument, the Court will turn to the dictionary for assistance.
In determining the settlor's intent the 'court will prefer an interpretation that gives effect to each
term of an agreement . .. to any interpretation that would result in a conclusion that some terms
repetitive.'"
are uselessly In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D.
Thomas Dated Dec. 17, 1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) (citations omitted). And
see, In re Peierls Family Inter Vivos Trusts, 77 A.3d 249 (Del. 2013) (the "intent must be
determined by considering the language of the trust instrument, read as an entirety, in light of the
circumstances surrounding its creation. Ifthis analysis fails to resolve the conflict, we resort to
rules of construction"); and see The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S.
Heyman v. Ashland LLC 2022 Del. LEXIS 277, at *14-*15 (Del. 2022) (under Delaware law, "'a
contract's construction should be that which would be understood by an objective, reasonable third
party.' parties'
'When interpreting a contract, this Court 'will give priority to the intentions as
agreement,'
reflected in the four corners of the construing the agreement as a whole and giving
provisions.'
effect to all its Furthermore, 'a court must determine the intent of the parties from the
contract.'
language of the This approach places great weight on the plain terms of a disputed
{TTLG:2589/0000/00218521.1: 5
5 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
contractual provision, and we 'interpret clear and unambiguous terms according to their ordinary
meaning.'
Courts should also assure that 'allcontract provisions [are] harmonized and given effect
possible.'
where We do not consider extrinsic evidence unless we find that the text is ambiguous.
Ambiguity is present 'only when the provisions in controversy are reasonably or fairly susceptible
meanings.'
of different interpretations or may have two or more different Critically, a contractual
differ"
provision is 'not rendered ambiguous simply because the parties in litigation as to the proper
interpretation . . .").
14. In addition, specific terms trump more general terms. DCV Holdings, Inc. v. Con
2nd
Agra, Inc., 889 A. 954 (Del. 2005). "Well-settled rules of contract construction require that a
parties'
contract be construed as a whole, giving effect to the intentions. Specific language in a
contract controls over general language, and where specific and general provisions conflict, the
one."
specific provision ordinarily qualifies the meaning of the general
15. As the sole member of the Trust Committee, Zeyenp has the right under her Trust
to exercise allof the extensive powers of the Trust Committee. The only exceptions to this are (i)
Zeynep cannot direct the Trustee to make discretionary distributions to satisfy any legal support
obligation that she may owe to a beneficiary, (ii) Zeynep cannot direct the Trustee to make
discretionary distributions to herself, and (iii)Zeynep cannot direct the Trustee to permit herself
or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-
FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).)
16. While Berrin correctly quotes Article NINTH (D)(3) ofthe Zeynep Trust, she draws
the entirely incorrect conclusion from it. Berrin's construction of the Trust is wrong.
17. Contrary to Berrin's view, ifthe only remaining member of the Trust Committee is
not an "independent the Trust Committee is not rendered ineffectual -- other than the
member",
|TTLG:2589/0000/00218521.1} 6
6 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
exceptions noted above, the Trust Committee can stillcarry out any and all of the extremely broad
powers granted to the Trust Committee, including those under Article FIFTEENTH.
18. That the Trustee Committee can continue to act even ifthe Trustee Committee is
comprised entirely of one or more non-independent member(s) is made clear in Article TWENTY
FIRST (B), which states: "Whenever all Trustees or members of the Trust Committee of such
trust are beneficiaries (i.e. not independent members) of such trust, the distribution powers granted
to such Trustees or members of the Trust Committee in this instrument shall be limited to
trust."
distributions for the health, education, maintenance or support of the beneficiaries of the
19. This provision in Article TWENTY FIRST (B) makes plain that the Grantor and
the drafter anticipated a situation where there would not be an independent member of the Trust
Committee, and demonstrates that the drafter and the Grantor intended that the Trust Committee
will continue to act even in the absence of an independent member.
20. As noted above, a member of the Trust Committee who is not an independent
member cannot generally participate in decisions to make distributions to themselves or make
distributions to any beneficiary to whom the non-independent member has a legal obligation to
support. Article TWENTY-FIRST (B) specifically contemplates that there may be times where
none of the members of the Trust Committee are independent members, and provides that, at such
times, the non-independent member or members of the Trust Committee can make distributions to
beneficiaries other than themselves, but only for health, education, maintenance and support.
21. There are no other limitations on a Trustee Committee comprised of non-
solely
independent members. By its own words, the Trust provides that the Trustee Committee will
continue to function even if the only member or members of the Trust Committee are not
[TTLG:2589/0000/00218521.1} 7
7 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
independent and, except for the few limitations or exceptions noted above, the Trustee Committee
retains full authority to exercise allof the powers granted to the Trust Committee.
22. The statements in Article NINTH (D) (2) and (3) cited by Berrin are silent as to
what should happen in the event there is no independent member serving on the Trust
Committee. Yet, Article TWENTY FIRST (B) clearly anticipates such a situation, and provides
for the Trust Committee to continue to act.
23. There are additional provisions in the trust instrument that contemplate a situation
in which only one person may be serving on the Trust Committee, and none of these other
references provide or even imply that the Trust Committee is rendered unable to act if that single
member is not an independent member. These provisions include:
a. Article NINTH (C), which provides, that "if each member of the Trust
Committee appointed by or pursuant to the prior provisions of this instrument
fails to accept his appointment when itbecomes effective or ceases to act for
any reason, the Protector Committee .. . shall promptly appoint one or more
trust."
members of the Trust Committee of such (emphasis supplied)
b. Article SIXTEENTH (A) (1) provides that, so long as there "shall be one or
more members of the Trust Committee .. . the Trustee shall act with respect
to the investment of [the Trust's assets] only upon the written direction of
Committee."
the Trust (emphasis supplied).
24. At least two sections of the Trust - Articles NINTH and SIXTEENTH
(C) (A) (1)
- demonstrate that the Trust contemplates that there will at times be one member of the Trust
only
Committee. Neither these sections, nor Article NINTH (D) (2) or (3) cited by Berrin, say or imply
that the Trust Committee cannot continue to act with only one member, nor do they say or imply
anything about the one member having to be an independent member.
25. Moreover, the words used in Article TWENTY-FIRST (B) plainly contemplate
situations in which there will be no independent members of the Trust Committee - and include
the situation where a sole member might not be an independent member. Article TWENTY-
{TTLG:2589/0000/00218521.1} 8
8 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
FIRST limits a non-independent member of the Trust Committee to making distributions to
(B)
maintenance and support - but
beneficiaries other than themselves only for health, education,
otherwise, the sole non-independent member of the Trust Committee has fullauthority to exercise
all the other powers of the Trust Committee.
"succession"
26. The Trust also contains several type provisions. For example, Article
SIXTH (B) (1) provides that if there is no one on the Protector Committee, the Trust Committee
exercises the power to remove and appoint trustees. Article SEVENTH (B) and (C) provide that
an independent trustee may appoint its successor, but ifthere is no independent trustee, then the
Protector Committee appoints the independent trustee, and if there is no one on the Protector
Committee, the Trustee Committee appoints the independent trustee and, finally, ifthere is no one
on the Trustee Committee, the beneficiaries appoint the independent trustee. If the intention of
the Trust was that a sole non-independent member of the Trust Committee could not act,the Trust
would have included provisions for same.
27. Thus, by the ordinary meaning of the words of the Trust, Zeynep, as the sole
member of the Trust Committee, can act for the Trust Committee.
28. Even ifthe Court finds that the language of the Trust itselfdoes not make plain that
Zeynep has authority to act as the sole member of the Trust Committee, the rules of construction
lead to the same conclusion.
29. One of the firstrules of construction is to give meaning to all provisions. If Article
NINTH (D) (2) or (3) were construed to mean that the Trust Committee cannot act unless there is
at least one independent member, Article NINTH (C), Article SIXTEENTH (A) (1), and Article
TWENTY-FIRST (B) would be rendered meaningless. Article NINTH D (3) only provides that
{TTLG:2589/0000/00218521.1: 9
9 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
must be independent - i.e. not a
whoever replaces Billur as a member of the Trustee Committee
beneficiary. Article NINTH must be read as a guideline or aspirational statement.
(C)
30. This is especially true because the statement in Article NINTH (C) that the Grantor
wants an independent member on the Trust Committee at alltimes is a general statement, whereas
the provisions of Article NINTH (C), Article SIXTEENTH, and Article TWENTY-FIRST (B) are
specific provisions that govern specific situations.
31. By the Trust's plain meaning and pursuant to Delaware law, the Trustee Committee
can exercise any and allof itspowers even when the sole member is not independent.
32. Finally, so long as she is the Protector, Berrin has the sole power to appoint an
member" (C).3
"independent of the Trust Committee Article NINTH IfBerrin were correct (and
she is not) that the Trust Committee cannot act without an "independent member", she has the
power to appoint such a member. Thus, it is disingenuous for Berrin to claim that the Trust
Committee is powerless to act,because she is the one who has refused to cure the very problem of
which she complains.
33. In any event, even though itappears that Berrin's failure to appoint a successor to
Berrin flies in the face of this Court's Trustee Removal Order, as the sole member of the Trustee
Committee of her Trust, Zeynep has the authority to exercise all of the powers granted by the Trust
to the Trust Committee.
CONCLUSION
34. For the reasons set forth herein, based upon my extensive experience as an attorney
drafting, modifying and otherwise dealing with trusts for over 29 years, and based upon the
3 of
Subject to theright beneficiaries or othersto requestCourt intervention.
{ TTLG:2589/0000/00218521.1
} 10
10 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
provisions of this Trust and Delaware law, itis my opinion that the terms of the Trust
Zeynep
provide that Zeynep has full authority to exercise allof the powers of the Trust Committee, with
the exceptions that Zeynep cannot: direct the Trustee to make discretionary distributions to satisfy
any legal support obligation that she may owe to a beneficiary; direct the Trustee to make
discretionary distributions to herself; and direct the Trustee to permit herself or caretakers to
occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B)
and (C); Article FIFTEENTH (B)(13).)
GARY TANNENBAUM
Sworn to before me this
day of November, 2022
Notary Publi
Commonwealth of Pennsylvania- Notary Seal
ASHLEYA MCBRIDE- Notary Public
Montgomery County
My CommissionExpires April 6, 2026
CommissionNumber 1328585
(TTLG:2589/0000/00218521.1} 11
11 of 12
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022
CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17
I hereby certify that the foregoing Memorandum of Law complies with Rule 17 of
subdivision (g) of section 202.70 of the Uniform Rules for the Supreme Court and County Court
(Rules of Practice for the Commercial Division of the Supreme Court), and has a word count of
3158, which is within the word limit of 7,000.
Dated: November 28 , 2022
New York, New York
Michele Kahn
Tekiner/Z-MCompel Def Comply Z Sole Member/
Tannenbaum AffConstruing Trust Ex Ver 11-27-22
{TTLG:2589/0000/00218521.1] 12
12 of 12
Preview
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, Index No.: 657193/2020 Plaintiff, Motion Sequence No. _ -against- AFFIDAVIT OF ATTORNEY GARY TANNENBAUM BREMEN HOUSE INC., GERMAN NEWS REGARDING CONSTRUCTION COMPANY, INC., BERRIN TEKINER, GONCA OF THE ZEYNEP TEKINER 2011 TEKINER, and BILLUR AKIPEK, in her as DESCENDANTS TRUST capacity a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. ZEYNEP TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Zeynep Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, Intervenor-Plaintiff, -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, Defendants. (TTLG:2589/0000/002I8521.1} 1 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF MONTGOMERY ) .ss GARY TANNENBAUM, being duly sworn, deposes and says: 1. I am an attorney duly admitted to the Bar of the State of Delaware. I am a partner with the Tannenbaum Law Group and a member of the Delaware Bar Association Trust and Estates 19807.1 Section. My firm maintain an offices at 5803 Kennett Pike Suite B-2 Wilmington, DE 2. I have been a practicing attorney for over 29 years, and I have been admitted to the Delaware bar for over 19 of those years. The majority of my practice is focused on trusts and estates. My clients include individuals, families, trustees, estates and small companies. I have drafted, modified, and advised clients on hundreds of trusts, including without limitation revocable and irrevocable trusts, inter vivos and testamentary trusts, and charitable trusts. The overwhelming majority of the trusts that I have worked with have been Delaware trusts. 3. I have been asked to opine as to whether Tekiner - as the sole member of Zeynep the Trust Committee of the Trust - has the to exercise the powers of the Trust Zeynep authority member" Committee even though there is no "independent of the Trust Committee. 4. As set forth herein, itis my opinion that, as the sole member of the Trust Committee of the Zeynep Tekiner 2011 Descendants Trust, and pursuant to both Delaware law and the plain language of the Zeynep Trust, Zeynep Tekiner has the full authority to exercise all powers of the Trust Committee. ' I am also duly admitted to the Bar of the Commonwealth of Pennsylvania, where I maintain my primary office and I am a member of the Montgomery County, PA Bar Association's Probate and Tax Section. The majority of my practice, however is in drafting, modifying, interpreting and administering Delaware trusts. {TTLG:2589/0000/00218521.1} 2 2 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 5. The exceptions to this are (i) Zeynep cannot direct the Trustee to make only distributions to satisfy any legal support obligation that she may owe to a beneficiary, discretionary (ii) cannot direct the Trustee to make discretionary distributions to herself, and (iii)Zeynup Zeynep cannot direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).) BACKGROUND 6. The factual recitation herein is based upon my review of the Zeynep Trust, along with other documents in this matter and information provided to me. My analysis and construction of the Trust is based upon my over 29 years as an attorney practicing trusts and estates law and over 19 years practicing Delaware law. 7. Berrin Tekiner is the Grantor and Protector of the Zeynep Trust, and Christiana Trust (a/k/a Bryn Mawr Trust) is the "Trustee",i.e., the Independent Trustee. As the Protector, Berrin has the authority under Article EIGHTH to appoint and remove members of the Trust Trust.2 Committee on the terms set forth in the 8. I have been advised that, when this action was commenced in December 2020, and when Zeynep joined the case as a plaintiff in April 2022, the members of the Trust Committee were Billur Akipek and Zeynep Tekiner. By way of Decision and Order dated October 19, 2022 NYSCEF Doc. No. 800), the Court removed Billur Akipek as a member of the Trust Committee of Zeynep's Trust, leaving Zeynep as the sole member of the Trust Committee. 2 Subject to the right of beneficiaries or others to request Court intervention. {TrLG:2589/0000/00218521.1} 3 3 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 9. After Billur was removed as a member of the Trust Committee, Zeynep issued a series of directions and requests for documents and information to the Independent Trustee, Christiana and to the Individual Defendants, Berrin Tekiner, Gonca Tekiner, and Billur Trust, Akipek. 10. letter dated November 11, 2022 (Exhibit J to the Zeynep Affidavit), Berrin By responded to certain of Zeynep's instructions, alleging that "Zeynep's purported actions as the sole void." member of the Trust Committee were and are beyond her authority, invalid and 11. To support her position, Berrin cited Article NINTH (D) (2) and (3) of the Zeynep Trust. Article NINTH (D) (2) merely provides that whoever replaces Berrin on the Trustee Committee must be independent, which that section defines independent as someone who is not a beneficiary, and Zeynep does not claim to be independent. Article NINTH (D) (3) states: "The Grantor directs that there shall at all times be at least one independent member of the Trust instrument." Committee qualified and acting under this 12. Neither NINTH or - nor other provision within the Trust - states (D) (2) (3) any that the Trust Committee lacks power to act without at least one independent member. And as set forth below, numerous provisions of the Trust make plain that the Trust contemplates numerous situations in which there will be only one member of the Trustee Committee, and in which the only member or members of the Trustee Committee are not independent. Thus, this Court should reject Berrin's conclusion that "[t]he Trust Committee has no power to act absent 'at least one member." independent { TTLG:2589/0000/00218521.1 } 4 4 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 THE SOLE MEMBER OF THE TRUST COMMITTEE, ZEYNEP IS FULLY AUTHORIZED TO EXERCISE ALL THE POWERS OF THE TRUST COMMITTEE 13. Delaware Courts construe the meaning of Delaware trusts according to rules very similar to the rules for contract construction. As the Delaware Chancery Court recently instructed: "When construing a trust, this Court attempts to discern the settlor's intent as expressed by the instrument, read as a whole, in light of the circumstances surrounding its creation. With that in mind, '[t]he words used in the [trust] generally are given their ordinary meaning and the Court will not consider extrinsic evidence to vary or contradict express provisions of a trust instrument that interpretation.' are clear, unambiguous and susceptible of only one To determine the ordinary meaning of words not defined in the instrument, the Court will turn to the dictionary for assistance. In determining the settlor's intent the 'court will prefer an interpretation that gives effect to each term of an agreement . .. to any interpretation that would result in a conclusion that some terms repetitive.'" are uselessly In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas Dated Dec. 17, 1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) (citations omitted). And see, In re Peierls Family Inter Vivos Trusts, 77 A.3d 249 (Del. 2013) (the "intent must be determined by considering the language of the trust instrument, read as an entirety, in light of the circumstances surrounding its creation. Ifthis analysis fails to resolve the conflict, we resort to rules of construction"); and see The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC 2022 Del. LEXIS 277, at *14-*15 (Del. 2022) (under Delaware law, "'a contract's construction should be that which would be understood by an objective, reasonable third party.' parties' 'When interpreting a contract, this Court 'will give priority to the intentions as agreement,' reflected in the four corners of the construing the agreement as a whole and giving provisions.' effect to all its Furthermore, 'a court must determine the intent of the parties from the contract.' language of the This approach places great weight on the plain terms of a disputed {TTLG:2589/0000/00218521.1: 5 5 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 contractual provision, and we 'interpret clear and unambiguous terms according to their ordinary meaning.' Courts should also assure that 'allcontract provisions [are] harmonized and given effect possible.' where We do not consider extrinsic evidence unless we find that the text is ambiguous. Ambiguity is present 'only when the provisions in controversy are reasonably or fairly susceptible meanings.' of different interpretations or may have two or more different Critically, a contractual differ" provision is 'not rendered ambiguous simply because the parties in litigation as to the proper interpretation . . ."). 14. In addition, specific terms trump more general terms. DCV Holdings, Inc. v. Con 2nd Agra, Inc., 889 A. 954 (Del. 2005). "Well-settled rules of contract construction require that a parties' contract be construed as a whole, giving effect to the intentions. Specific language in a contract controls over general language, and where specific and general provisions conflict, the one." specific provision ordinarily qualifies the meaning of the general 15. As the sole member of the Trust Committee, Zeyenp has the right under her Trust to exercise allof the extensive powers of the Trust Committee. The only exceptions to this are (i) Zeynep cannot direct the Trustee to make discretionary distributions to satisfy any legal support obligation that she may owe to a beneficiary, (ii) Zeynep cannot direct the Trustee to make discretionary distributions to herself, and (iii)Zeynep cannot direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY- FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).) 16. While Berrin correctly quotes Article NINTH (D)(3) ofthe Zeynep Trust, she draws the entirely incorrect conclusion from it. Berrin's construction of the Trust is wrong. 17. Contrary to Berrin's view, ifthe only remaining member of the Trust Committee is not an "independent the Trust Committee is not rendered ineffectual -- other than the member", |TTLG:2589/0000/00218521.1} 6 6 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 exceptions noted above, the Trust Committee can stillcarry out any and all of the extremely broad powers granted to the Trust Committee, including those under Article FIFTEENTH. 18. That the Trustee Committee can continue to act even ifthe Trustee Committee is comprised entirely of one or more non-independent member(s) is made clear in Article TWENTY FIRST (B), which states: "Whenever all Trustees or members of the Trust Committee of such trust are beneficiaries (i.e. not independent members) of such trust, the distribution powers granted to such Trustees or members of the Trust Committee in this instrument shall be limited to trust." distributions for the health, education, maintenance or support of the beneficiaries of the 19. This provision in Article TWENTY FIRST (B) makes plain that the Grantor and the drafter anticipated a situation where there would not be an independent member of the Trust Committee, and demonstrates that the drafter and the Grantor intended that the Trust Committee will continue to act even in the absence of an independent member. 20. As noted above, a member of the Trust Committee who is not an independent member cannot generally participate in decisions to make distributions to themselves or make distributions to any beneficiary to whom the non-independent member has a legal obligation to support. Article TWENTY-FIRST (B) specifically contemplates that there may be times where none of the members of the Trust Committee are independent members, and provides that, at such times, the non-independent member or members of the Trust Committee can make distributions to beneficiaries other than themselves, but only for health, education, maintenance and support. 21. There are no other limitations on a Trustee Committee comprised of non- solely independent members. By its own words, the Trust provides that the Trustee Committee will continue to function even if the only member or members of the Trust Committee are not [TTLG:2589/0000/00218521.1} 7 7 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 independent and, except for the few limitations or exceptions noted above, the Trustee Committee retains full authority to exercise allof the powers granted to the Trust Committee. 22. The statements in Article NINTH (D) (2) and (3) cited by Berrin are silent as to what should happen in the event there is no independent member serving on the Trust Committee. Yet, Article TWENTY FIRST (B) clearly anticipates such a situation, and provides for the Trust Committee to continue to act. 23. There are additional provisions in the trust instrument that contemplate a situation in which only one person may be serving on the Trust Committee, and none of these other references provide or even imply that the Trust Committee is rendered unable to act if that single member is not an independent member. These provisions include: a. Article NINTH (C), which provides, that "if each member of the Trust Committee appointed by or pursuant to the prior provisions of this instrument fails to accept his appointment when itbecomes effective or ceases to act for any reason, the Protector Committee .. . shall promptly appoint one or more trust." members of the Trust Committee of such (emphasis supplied) b. Article SIXTEENTH (A) (1) provides that, so long as there "shall be one or more members of the Trust Committee .. . the Trustee shall act with respect to the investment of [the Trust's assets] only upon the written direction of Committee." the Trust (emphasis supplied). 24. At least two sections of the Trust - Articles NINTH and SIXTEENTH (C) (A) (1) - demonstrate that the Trust contemplates that there will at times be one member of the Trust only Committee. Neither these sections, nor Article NINTH (D) (2) or (3) cited by Berrin, say or imply that the Trust Committee cannot continue to act with only one member, nor do they say or imply anything about the one member having to be an independent member. 25. Moreover, the words used in Article TWENTY-FIRST (B) plainly contemplate situations in which there will be no independent members of the Trust Committee - and include the situation where a sole member might not be an independent member. Article TWENTY- {TTLG:2589/0000/00218521.1} 8 8 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 FIRST limits a non-independent member of the Trust Committee to making distributions to (B) maintenance and support - but beneficiaries other than themselves only for health, education, otherwise, the sole non-independent member of the Trust Committee has fullauthority to exercise all the other powers of the Trust Committee. "succession" 26. The Trust also contains several type provisions. For example, Article SIXTH (B) (1) provides that if there is no one on the Protector Committee, the Trust Committee exercises the power to remove and appoint trustees. Article SEVENTH (B) and (C) provide that an independent trustee may appoint its successor, but ifthere is no independent trustee, then the Protector Committee appoints the independent trustee, and if there is no one on the Protector Committee, the Trustee Committee appoints the independent trustee and, finally, ifthere is no one on the Trustee Committee, the beneficiaries appoint the independent trustee. If the intention of the Trust was that a sole non-independent member of the Trust Committee could not act,the Trust would have included provisions for same. 27. Thus, by the ordinary meaning of the words of the Trust, Zeynep, as the sole member of the Trust Committee, can act for the Trust Committee. 28. Even ifthe Court finds that the language of the Trust itselfdoes not make plain that Zeynep has authority to act as the sole member of the Trust Committee, the rules of construction lead to the same conclusion. 29. One of the firstrules of construction is to give meaning to all provisions. If Article NINTH (D) (2) or (3) were construed to mean that the Trust Committee cannot act unless there is at least one independent member, Article NINTH (C), Article SIXTEENTH (A) (1), and Article TWENTY-FIRST (B) would be rendered meaningless. Article NINTH D (3) only provides that {TTLG:2589/0000/00218521.1: 9 9 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 must be independent - i.e. not a whoever replaces Billur as a member of the Trustee Committee beneficiary. Article NINTH must be read as a guideline or aspirational statement. (C) 30. This is especially true because the statement in Article NINTH (C) that the Grantor wants an independent member on the Trust Committee at alltimes is a general statement, whereas the provisions of Article NINTH (C), Article SIXTEENTH, and Article TWENTY-FIRST (B) are specific provisions that govern specific situations. 31. By the Trust's plain meaning and pursuant to Delaware law, the Trustee Committee can exercise any and allof itspowers even when the sole member is not independent. 32. Finally, so long as she is the Protector, Berrin has the sole power to appoint an member" (C).3 "independent of the Trust Committee Article NINTH IfBerrin were correct (and she is not) that the Trust Committee cannot act without an "independent member", she has the power to appoint such a member. Thus, it is disingenuous for Berrin to claim that the Trust Committee is powerless to act,because she is the one who has refused to cure the very problem of which she complains. 33. In any event, even though itappears that Berrin's failure to appoint a successor to Berrin flies in the face of this Court's Trustee Removal Order, as the sole member of the Trustee Committee of her Trust, Zeynep has the authority to exercise all of the powers granted by the Trust to the Trust Committee. CONCLUSION 34. For the reasons set forth herein, based upon my extensive experience as an attorney drafting, modifying and otherwise dealing with trusts for over 29 years, and based upon the 3 of Subject to theright beneficiaries or othersto requestCourt intervention. { TTLG:2589/0000/00218521.1 } 10 10 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 provisions of this Trust and Delaware law, itis my opinion that the terms of the Trust Zeynep provide that Zeynep has full authority to exercise allof the powers of the Trust Committee, with the exceptions that Zeynep cannot: direct the Trustee to make discretionary distributions to satisfy any legal support obligation that she may owe to a beneficiary; direct the Trustee to make discretionary distributions to herself; and direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).) GARY TANNENBAUM Sworn to before me this day of November, 2022 Notary Publi Commonwealth of Pennsylvania- Notary Seal ASHLEYA MCBRIDE- Notary Public Montgomery County My CommissionExpires April 6, 2026 CommissionNumber 1328585 (TTLG:2589/0000/00218521.1} 11 11 of 12 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 881 RECEIVED NYSCEF: 11/28/2022 CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17 I hereby certify that the foregoing Memorandum of Law complies with Rule 17 of subdivision (g) of section 202.70 of the Uniform Rules for the Supreme Court and County Court (Rules of Practice for the Commercial Division of the Supreme Court), and has a word count of 3158, which is within the word limit of 7,000. Dated: November 28 , 2022 New York, New York Michele Kahn Tekiner/Z-MCompel Def Comply Z Sole Member/ Tannenbaum AffConstruing Trust Ex Ver 11-27-22 {TTLG:2589/0000/00218521.1] 12 12 of 12