Superior Court County: King. Superior Court Cause No: 94-4-00246-2. Date filed in Superior Court: 1-13-95. Superior Court Judge Signing: Peter Jarvis.
Petition for Review Denied May 7, 1997,
Written by: Baker, C.j. Concurred by: Webster, J., Cox, J.
The opinion of the court was delivered by: Baker
BAKER, C.J. - Rita Willis, the Estate of Arthur Tosh, and Norma Jean Schmidt, Administratrix (hereinafter collectively Willis) appeal the trial court's decisions regarding the distribution of Tosh's estate. Because the purported amendment to Tosh's living trust giving Phyllis Christenson a fee simple interest in the duplex is invalid, we reverse the trial court's decision on that issue and remand for redetermination of attorney fees between Willis and Christenson. Because Willis has failed to substantiate a claim against Security Benefits, Inc., we affirm in all respects the court's award of attorney fees to Security Benefits, and award fees similarly on appeal. We also hold that certain moneys transferred to decedent's daughters by Christenson were part of the estate, and reject her cross appeal for return of those funds.
Arthur Tosh started a long and intimate relationship with Phyllis Christenson in 1984. A few years later Tosh purchased a duplex, which he and Christenson shared until his death. In 1988 Tosh executed a will leaving Christenson a life estate in the duplex. A few years later Tosh met Tom Omley, an estate planning consultant. This meeting eventually resulted in Tosh executing a revocable living trust and related documents for the Disposition of his assets upon his death. An attorney for Security Benefits, Inc. prepared the documents.
The original trust left Christenson a life estate in the duplex, and split the remainder of the estate equally between his two daughters. Tosh later had the attorney who prepared the documents amend the trust to leave Christenson the duplex outright. The amendment was accomplished by simply inserting a new page six into the previously executed document. Two other attorneys subsequently advised Tosh that the trust agreement, as amended, gave Christenson fee simple ownership of the duplex.
Tosh also made Christenson a joint tenant with right of survivorship in his checking account. Just hours before his death, Christenson withdrew $137,000 from Tosh's checking account. After his death, Christenson transferred this money to Tosh's daughters.
Tosh's daughters, Rita Willis and Norma Jean Schmidt, contested the trust and related documents and sought to probate the earlier will. They alleged, among other things, undue influence by Christenson and Security Benefits in the procurement of the trust. Christenson responded with an action for return of the $137,000. The actions were consolidated.
During the trial, the daughters contested the validity of the amendment to the trust. The trial court concluded that the trust was valid as amended and that the $137,000 dollars belonged to the estate, and awarded fees to Christenson and Security Benefits for their defense against the action brought by the daughters.
The record establishes the clear intent of the trustor to effect an amendment to the trust document, and a reasonable belief on his part that he had done so. Nevertheless, we must determine whether a valid amendment was accomplished.
The trust provided that it could be amended by the trustor "by a duly executed instrument filed with Trustee". The parties dispute whether "executed" means signed. Taking this word out of context, the definitions of "executed" may differ. But however "executed" is defined, we are satisfied that merely substituting a page of a trust agreement is not a "duly executed instrument". A more formal procedure is required. The substituted page was not initialed, signed, or witnessed in writing. The date at the bottom of the substituted page remained unchanged. ...