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How Property Was Titled Did Not Control Disposition Of Asset

December 9, 2015

Authors

Luke Lantta

How Property Was Titled Did Not Control Disposition Of Asset

December 9, 2015

by: Luke Lantta

A deed transfers a lake cottage to a revocable living trust.  Title to the cottage is still in the name of that trust when the grantors die.  The cottage gets distributed according to the terms of that trust, right?  According to the Wisconsin Court of Appeals in Simon v. Sheedy, maybe not.  It depends whether someone can show that the grantors wanted the asset disposed of in another way.

Patrick and Margaret Sheedy created a revocable living trust in 1995.  They deeded their lake cottage along with some other properties to that trust.  Under the terms of the 1995 trust, the cottage would essentially end up being jointly owned by the Sheedys’ children.  In 2004, Patrick and Margaret created another revocable trust, the terms of which were different from the 1995 trust.  In particular, the cottage was to be

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Could Trust Protector Amend Procedure For Removing Himself?

July 2, 2015

Authors

Luke Lantta

Could Trust Protector Amend Procedure For Removing Himself?

July 2, 2015

by: Luke Lantta

We have looked at a number of chapters of the Wellin trust disputes in South Carolina and how they are shaping trust protector law.  A recent district court opinion in one of the cases, McDevitt v. Wellin, digs a little deeper into the authority of the trust protector, namely if the trust protector had the authority to amend the procedure for his own removal.  Not surprisingly, the opinion turned on the language used by the trustor in the trust when describing the trust protector’s powers.

The trust protector purported to amend the trust and to change the procedure for his own removal.  It was argued that the amendment was invalid because, through the amendment, the trust protector was increasing his

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Trust Reformation Was Not A Remedy For Failing To Complete An Estate Plan

June 24, 2015

Authors

Luke Lantta

Trust Reformation Was Not A Remedy For Failing To Complete An Estate Plan

June 24, 2015

by: Luke Lantta

With several recent cases in which Massachusetts courts have permitted trust modification, we might have started to think that trusts would be liberally reformed in Massachusetts.  The Appeals Court of Massachusetts’ decision in Lesanto v. Lesanto (Rule 1:28 decision), however, reminds us that certain requirements must be met to reform a trust.

In October 2005, Paul Lesanto executed a will and the Paul Lesanto 2005 Revocable Trust (“First 2005 Trust”).  The bulk of Lesanto’s estate would pour over into the First 2005 Trust.  In 2010, however, Lesanto executed a new trust document that retained the name “The Paul Lesanto 2005 Revocable Trust” (“Second 2005 Trust”), but specifically provided that “[t]he Grantor wishes to establish a Trust which may receive property which the Grantor may transfer to it.  The Grantor

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Power Of Attorney Amended Revocable Trust

April 1, 2015

Authors

Luke Lantta

Power Of Attorney Amended Revocable Trust

April 1, 2015

by: Luke Lantta

Georgia makes it easy to amend a trust if the settlor expressly reserves such a power: it needs to be in writing and signed by the settlor.  In Strange v. Towns, the Georgia Court of Appeals showed us how leniently courts should interpret that power to amend.

Pauline Strange created an inter vivos trust naming herself as the initial trustee and three people, including her son Tony, as successor trustees.  Years later, Pauline executed a “General Durable Financial Power of Attorney,” and in the power of attorney Pauline stated that she wanted Tony to be the “executor” of her estate and the trust.  Pauline and Tony both signed the power of attorney.

This was good enough to amend Pauline’s trust because she reserved the right to amend in

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Separate Writing Could Not Modify Trust Or Dispose Of Real Property

October 23, 2014

Authors

Luke Lantta

Separate Writing Could Not Modify Trust Or Dispose Of Real Property

October 23, 2014

by: Luke Lantta

Trustors frequently build into their trust instrument a provision through which they can dispose of property through a list, drafted later, but attached to the trust instrument. Such a list can provide a simple way of distributing tangible personal property without the need to modify or amend the entire trust every time the trustor acquires new personal property or changes her mind about who should get what. But such a list has its limits. As the Indiana Court of Appeals explained in Turner v. Kent, under Indiana law a list cannot dispose of real property.

Alexander and Selma Kazlauski established a trust that provided that:

We may from time to time indicate our desire that specific gifts be made from this living trust upon the death of the survivor of

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Express Language Of Trust Instrument Prevented Plaintiff From Making Certain Claims Against Trustee

March 6, 2014

Authors

Luke Lantta

Express Language Of Trust Instrument Prevented Plaintiff From Making Certain Claims Against Trustee

March 6, 2014

by: Luke Lantta

The words within the four corners of a trust instrument mean something.  In Harvill v. Harvill, a federal case from Tennessee that we’ve previously looked at here, we see that sometimes those express words mean so much that a plaintiff is prevented from making a claim based on allegations that directly contradict the words in the trust.  But, it’s also the part of the opinion about an amendment of the trust pursuant to a power of attorney – something that the court didn’t need to address – that also interests us.  But, before we get into that, let’s first look at what the court had to say about the trustee’s exercise of discretion under the trust instrument.

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Missouri Court Narrowly Construes Ability of Trust Settlor to Create Conditional Trust Amendment

August 22, 2013

Authors

Steve Dawson

Missouri Court Narrowly Construes Ability of Trust Settlor to Create Conditional Trust Amendment

August 22, 2013

by: Steve Dawson

An upcoming vacation, particularly one that involves flying, often encourages individuals to revisit their existing estate planning—or perhaps even to put a new estate plan into place—to ensure that their estate will be disposed of as they wish if they do not return safely.  The worst case scenario people worry about rarely happens.  People return home, carry on with their lives, and their updated estate planning documents continue to be operative.  Yet there is a long history of cases in Missouri (going back to at least 1872) dealing with “conditional” wills and trusts.  A conditional will or trust is one that states that the document has no effect unless a specified condition, such as the failure to return safely from a trip, occurs.

In the most recent case addressing a conditional trust, Rouner v. Wise, the Missouri Court of Appeals for the

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Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

Authors

Luke Lantta

Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

by: Luke Lantta

In Estate of Boyar, the Supreme Court of Illinois had an opportunity to address an important question of Illinois trust law:  whether the “doctrine of election” applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.  The trial court decided it did.  The Illinois appellate court also decided it did.  The Illinois Supreme Court, however, decided that there was no reason for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine couldn’t be invoked under the circumstances present in the case.  Nevertheless, we get some good insight into when the doctrine of election could come into play in whatever contexts it might be applicable.

First, some quick facts.

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Trust Could Not Be Revoked Or Amended Through Will

June 25, 2012

Authors

Luke Lantta

Trust Could Not Be Revoked Or Amended Through Will

June 25, 2012

by: Luke Lantta

Courts repeatedly remind us of the necessity to be very explicit with the language in our trust instruments.  With some very narrow exceptions, the clear, unambiguous language of the instrument controls.  This is sometimes referred to as being bound by the four corners of the instrument.

Our latest reminder of the need to remove all assumptions, ambiguity, or inconsistencies from estate planning documents comes to us from Ohio in WesBanco, Inc. v. Blair.  Here, we had the son of the decedent claiming that the decedent’s will revoked or amended his trust thereby eliminating the decedent’s allegedly estranged girlfriend as a beneficiary under the trust.  The son claimed that the decedent had reserved the right to amend or revoke the trust and he did so when he executed his will.

Seems that if the decedent and girlfriend had a falling out and

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