New Will Does Not Necessarily Change Prior Living Trust

MARCH 24, 1997 VOLUME 4, NUMBER 38

In June of 1990, Kansas resident Ellen M. Sanders executed a revocable living trust. Like most such trusts, Ms. Sanders’ described how her estate was to be divided after her death. She named herself as trustee, and appointed a successor to take over administration of the trust after her death or disability.

The nature of revocable living trusts is that they are not only revocable but also amendable. Ms. Sanders amended her trust several times over the next two years, each time preparing a written amendment and specifically referring to the trust. The trust itself included provisions for such amendments, requiring only that the amendment be made “by a writing delivered to the trustee.” Since Ms. Sanders was herself the trustee of her trust, delivery of the amendments was not an issue.

Upon her death, according to the terms of Ms. Sanders’ trust, her estate would be held for another ten years in the trust. After that time, most of it was to be divided between her son Mac and her grandson Bill, with a small portion going to her daughter Patricia Bergman.

Then, in July, 1993, Ms. Sanders executed a whole new will. In the new will, she made no reference to the trust, but she did instruct that her estate should be divided equally among Mac, Bill and Patricia. She took no steps to amend, revoke or otherwise alter the trust itself.

Ms. Sanders died in September, 1994. Patricia promptly filed the July, 1993, will with the Kansas probate court, and argued that Ms. Sanders implicitly revoked the trust by executing her new will. Mac and Bill challenged the will, asserting that Ms. Sanders lacked capacity or was unduly influenced in the execution of the will. In any event, they argued, she had not revoked the trust because she had not made specific reference to it, nor delivered a “writing” to herself as trustee.

The Kansas probate court initially agreed with Patricia, finding that Ms. Sanders was competent, was not unduly influenced, and intended by her new will to revoke any and all testamentary documents, including her existing trust. Mac and Bill appealed to the Kansas Supreme Court.

That appellate court agreed with Mac and Bill. In order to amend or revoke the trust, the justices ruled, Ms. Sanders would have had to make specific reference to the trust and follow the trust’s procedures for revocation or amendment. The court noted the ambiguity in Ms. Sanders’ actions: perhaps she actually intended to revoke the trust, but perhaps she was only seeking to placate family members without actually changing the disposition of her estate, or perhaps she genuinely did not recall she had created and funded the trust. In re Estate of Sanders, Supreme Court of Kansas, December 13, 1996.

In Arizona, a similar result would likely be reached. While there is no Arizona case with exactly the same facts, there is one strikingly similar. In Pilafas v. Arizona Zoological Society, a 1992 case, Steve Pilafas had executed a revocable living trust but it could not be found after his death. Because there is a long-standing rule that missing wills are presumed to have been destroyed by the testator (thereby revoking the will), Pilafas’ son argued that the missing documents should raise a similar presumption that he had actually revoked the trust and meant to leave his estate to his children.

The Arizona result was similar to the Kansas court’s conclusion in Sanders. Mr. Pilafas’ missing will was accepted as evidence that he had actually destroyed (and thereby revoked) the original document. The same could not be said, however, of the missing trust documents. Since all of Mr. Pilafas’ estate had been transferred to the trust during his life, a copy of the document (as later amended) was used to transfer the bulk of his estate to eight non-profit charitable organizations.

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