Ellen Aguiar v. William Natbony, et al
AFFIDAVIT of SIGRID STONE McCAWLEY. Document filed by Ellen Aguiar. (arc) (Additional attachment(s) added on 8/18/2011: # 1 Ex 1, # 2 Ex 2, # 3 Ex 3 Part 1, # 4 Ex 3 Part 2, # 5 Ex 3 Part 3, # 6 Ex 3 Part 4, # 7 Ex 3 Part 5, # 8 Ex 3 Part 6, # 9 Ex 3 part 7, # 10 Ex 4, # 11 Ex 5, # 12 Ex 6, # 13 ex 7) (arc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM NATBONY, individually and as
trustee ofthe THOMAS S. KAPLAN 2004
QUALIFIED TEN YEAR ANNUITY TRUST
AGREEMENT and the DAFNA KAPLAN 2003
EIGHT YEAR ANNUITY TRUST
AGREEMENT, THOMAS KAPLAN and
Plaintiff Ellen Aguiar sues defendants William Natbony, individually and as trustee of
the Thomas S. Kaplan 2004 Qualified Ten Year Grantor Retained Annuity Trust (the "Thomas
Trust") and of the Dafna Kaplan 2003 Eight Year Grantor Retained Annuity Trust (the "Dafna
Trust" and, together with the Thomas Trust, "the Trusts"), Thomas Kaplan, and Dafna Kaplan
and alleges as follows:
This lawsuit arises from actions taken by defendant Thomas Kaplan ("Kaplan") as
a result of a bitter business dispute with his nephew, Guma Aguiar ("Guma"), a non-party to this
action. As a result of this business dispute with Guma, Kaplan launched what he termed an
"offensive" across "the broadest front imaginable" which included the wrongful acts against
plaintiff Aguiar - Kaplan's sister and Guma's mother - that give rise to this action. (See Exhibit
1, December 15, 2008 E-mail from Thomas Kaplan to Ellen Aguiar.) As one aspect of Kaplan's
vindictive "offensive," defendant William Natbony ("Natbony"), the sole trustee of the billion
dollar irrevocable Trusts, and subordinate of Kaplan, who is wholly dependent upon the Kaplans
for his livelihood, removed plaintiff and her issue as beneficiaries I of the Trusts. In so doing,
Natbony breached his fiduciary duty to plaintiff Aguiar.
Natbony' s removal of plaintiff as a beneficiary was not the first time he breached
his duties as trustee by favoring the Kaplans. Indeed, contrary to his obligation as a putative
disinterested and unconflicted trustee, Natbony effectively ceded management ofthe Trusts to
the Kaplans. Natbony allowed the Kaplans to direct the investment of the corpus ofthe Trusts
for the Kaplans' benefit including by investing millions of dollars in purchases ofland and art at
the direction of the Kaplans.
As a result of these improper actions by the Kaplans and Natbony, the January 7,
2009 Amendments to the Trusts that removed plaintiff and her issue as beneficiaries, are invalid
and plaintiff and her issue must be reinstated as beneficiaries. In addition, and by reason of his
various breaches of duty and relationship with the Kaplans, Natbony should be removed as
trustee and the Court should appoint a neutral disinterested and non-conflicted successor trustee
to ensure the ongoing protection ofthe Trusts and the beneficiaries.
PARTIES, JURISDICTION, AND VENUE
Plaintiff Aguiar is a resident of Broward County, Florida, and a citizen of the state
of Florida. She is a person interested in the Trusts in that, until she was improperly removed as a
beneficiary, she was, and thus still should be, a beneficiary ofthe Trusts. Plaintiff has suffered
an injury in fact to her interest in the Trusts in that Natbony breached his fiduciary duty to her,
and abused his fiduciary discretion, by improperly and in bad faith removing her as a beneficiary
I The other innocent family members who were removed as beneficiaries include: Adrianna Aguiar, Jannai Aguiar,
Angelika Aguiar, Olivia Aguiar (a minor child), Jacob Aguiar (a minor child), Lilly Aguiar (a minor child) and
Jonathan Aguiar (a minor child).
of the Trusts and by dissipating trust assets. As the improper or wrongful acts of the defendants
related to the Trusts, and impact her interests as a beneficiary thereof, plaintiff Aguiar has
standing to bring this action for wrongful removal as a beneficiary of the Trusts, for injunctive
relief to prevent the dissipation of the assets of the Trusts, and further for removal of a faithless
and conflicted trustee.
Defendant Natbony is a citizen and resident ofNew York State. He has served as
the sole trustee of the Thomas Trust and the Dafna Trust at all times relevant to this action. The
Trusts provide that they are to be construed under the law of New York. As trustee of the
Thomas Trust and Dafna Trust, defendant Natbony had (and still has) a fiduciary duty to the
Trusts' beneficiaries, including plaintiff Aguiar.
Defendant Kaplan, the Settlor ofthe Thomas Trust, is a citizen of New York and
a resident of New York City. Kaplan is married to defendant Dafna Kaplan.
Defendant Dafna Kaplan is a resident of New York City, New York, and is a
citizen ofItaly and Israel. She is the Settlor of the Dafna Trust.
The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) because the
parties are citizens of different states, or citizens of different states where citizens of a foreign
state are additional parties, and the amount in controversy exceeds $75,000, exclusive of interest
Venue is proper pursuant to 28 U.S.C. § l391(a) because one or more defendants
reside in this District and because the underlying events and omissions giving rise to this action
occurred in this District.
All conditions precedent to this action have been satisfied and fulfilled.
The Trusts and Natbony as Trustee.
The Trusts at issue in this litigation, upon infonnation and belief, hold over two
billion dollars, almost all of which constitute proceeds of the sale of Leor Exploration and
Production LLC ("Leor"), a natural gas exploration company that was founded by Kaplan and
Guma in 2003. Natbony and Kaplan were the directors of Leor. Leor was sold in 2007 for over
2.55 billion dollars. Almost all ofthe proceeds were funneled into the Trusts.
The Trusts are irrevocable Grantor Retained Annuity Trusts (commonly referred
to as "GRATS"). The Kaplans, in exchange for the broad tax advantages of a GRAT, forfeited
their right to manage or otherwise dictate the affairs of the Trusts. However, although the
Kaplans received a tax advantage worth tens of millions of dollars, they violated the tenns of the
Trusts and the rules and regulations of the Internal Revenue Code by retaining and exercising
effective control and ownership of the Trusts.
Plaintiff Aguiar and her issue were named beneficiaries ofthe Thomas Trust at its
inception on April 6, 2004. 'As such, plaintiff Aguiar and her issue were entitled, at the sole
discretion of a disinterested trustee, to receive income and principal after the expiration in 2014
of the Original Trust2 tenn and during the lifetimes of Kaplan or his wife, Dafna. Plaintiffis also
a remainder beneficiary in the event the Kaplans and their issue should not survive the
Tennination of the Thomas Trust.
The Dafna Trust was created on December 29,2003, and provided that plaintiff
Aguiar and her issue were remainder beneficiaries. The Dafna Trust was amended on August 8,
The "Original Trust," in both the Thomas and Dafna GRAT, holds the trust property for a period of ten years (in
the case of the Thomas Trust) and eight years (in the case of the Dafna Trust) during which time annuity payments
are made to the Settlors. Upon expiration of the annuity period, if certain conditions are met, the trust property is
held by the trustee in a "Family Trust."
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