In the Matter of the MARITAL TRUST B CREATED UNDER THE LAST WILL AND TESTAMENT OF FELECIA A. GRAHAM DATED OCTOBER 26, 1998, F/B/O FREDERICK A. GRAHAM.
BANK OF AMERICA, N.A., Respondent. FREDERICK A. GRAHAM, Appellant,
A. Graham appeals a trial court order denying his request for
a declaration of his rights in a trust created by Felecia
Graham's will. This trust creates a life interest in
Frederick. On his death, the trust distributes its net assets
as Frederick appoints or provides in his will. If he does
neither, the assets are distributed to his estate. Frederick
asked the court to declare that he owns the remainder
interest in the trust assets and can bind that interest
without it being separately represented. We disagree, affirm,
and award the trustee attorney fees and costs against
Graham died in 2001. In her will, she established a trust
benefitting her husband, Donald Graham Jr., for his life and
giving a remainder interest to her two sons, Frederick Graham
and Donald Graham III. In 2012, these three individuals
signed a binding agreement that ended Donald Jr.'s lifetime
interest in the trust and divided it into two subtrusts, one
for the benefit of each son. This appeal concerns the
subtrust (hereinafter "the trust") for Frederick
trust directs the trustee to pay the trust income to
Frederick annually for the rest of his life. It also permits
the trustee to make distributions from the principal in
If... in the judgment of the Trustee the aggregate income
payable to any descendant, together with the other resources
and income of such beneficiary which the Trustee deems to be
reasonably available to him or to her for such purposes . . .
shall be insufficient to provide for the proper support in
his or her accustomed manner of living ..., the Trustee may
distribute or expend for the benefit of such beneficiary such
portion of the principal of [the trust] as the Trustee shall
deem necessary for such purpose under the circumstances.
trust provides that when Frederick dies, his "share of
the net assets of the trust estate shall be distributed as he
shall appoint or provide by his will or, in the absence of
such appointment or provision, to his estate."
Bank of America N.A. (the Bank) became the trustee, Frederick
disagreed with the amount that the Bank distributed to him
annually. He received an initial increase but asked the Bank
did not agree with the new amount that the bank suggested.
The parties' efforts to negotiate an agreement under the
Trust and Estate Dispute Resolution Act (TEDRA) failed.
The Bank then asked the trial court for guidance.
trial court affirmed the Bank's actions and agreed with
it that there is "a separate remainder interest" in
the trust. Frederick appealed this decision. He asked this
court to determine as a matter of law that no separate
remainder interest exists. We affirmed but did not decide the
issue of whether the trust includes "a separate
remainder interest" held by "unascertained
remaindermen." We reasoned that the determination of a
separate remainder interest was not necessary to the trial
court's summary judgment decision.
then filed a second lawsuit, requesting a declaration of his
rights over the remainder interest in the trust. The trial
court denied Frederick's request, concluding, "A
separate remainder interest exists in the Trust, as held by
Judge Ramseyer. Mr. Graham may not virtually represent that
interest in TEDRA litigation or Non Judicial Binding
Agreement, which could negatively impact the remainder
appeals the trial court's order.
appellate court generally reviews de novo decisions based on
declarations, affidavits, and written
documents. So we review the trial court's
decision to deny Frederick's request for a declaration of
rights de novo. When we conduct a de ...