Beneficiaries of an unexecuted trust amendment have no cause of action against the settlor’s attorney. The Missouri intermediate appellate court held that the purported beneficiaries of an unexecuted trust amendment do not have standing to sue the settlor’s attorney. In Fallon v. Easley, 686 S.W.3d 287 (Mo. Ct. App. 2024), the court affirmed summary judgment for the attorney, finding a lack of privity and agreeing with other divisions of the court that Donahue v. Shughart, 900 S.W.2d 624 (Mo. 1995), which allowed disappointed beneficiaries to sue despite a lack of privity, was limited to controversies involving donative documents that had been executed.
No-contest clause does not apply to a suit to remove a trustee for breach of duty. A parent’s trust included a no-contest clause, declaring the settlor’s intention to avoid litigation regarding the trust and requiring the forfeiture of the interest of any beneficiary who legally challenged or attempted to “impair the function” of the trust. One beneficiary brought a proceeding to remove the trustee, alleging a breach of fiduciary duties related to the care of trust property. The district court granted summary judgment for the trustee on the grounds that the beneficiary had violated the no-contest clause and was no longer a beneficiary. On appeal, the Supreme Court of Wyoming reversed in Spurlock v. Wyo. Tr. Co., 542 P.3d 1071 (Wyo. 2024), holding that the no-contest clause did not forbid all litigation brought by a beneficiary and a proceeding to remove the trustee was not a proceeding to “impair” the functioning of the trust.
A will may be partially voided to eliminate a bequest found to be the product of undue influence. In a case affirming the finding that a bequest in the testator’s will was the product of undue influence, the Supreme Court of Vermont in Matter of Crofut, 312 A.3d 1002 (Vt. 2024), held as a matter of first impression that partial voiding of the will to eliminate the bequest was the appropriate remedy and that the rest of the will may be enforced as written.
Reformation granted on clear and convincing evidence. In Matter of Elton G. Beebe, Sr. Irrev. Tr., 380 So. 3d 905 (Miss. 2024), a divided Mississippi Supreme Court reformed an irrevocable trust applying Miss. Code Ann. § 91-8-425 (identical to U.T.C. § 415) holding that the settlor’s testimony that the settlor did not read the trust when it was executed and that the terms creating the remainder did not correspond to the settlor’s intent and other testimony regarding the settlor’s practice of sometimes not reading documents before signing them and affirming the settlor’s true intent was sufficient to allow reformation. The dissent emphasized the settlor’s duty under Mississippi law to read and understand the trust document and the settlor’s testimony that the settlor had not thought about the remainder provision in the 30 years between the execution of the trust document and the bringing of the instant action.
Attempt to transfer property in violation of a spendthrift restriction is void ab initio. The trust beneficiaries transferred their interests in real estate held in a trust with a valid restriction on both voluntary and involuntary alienation. The trust ended 11 years later, and seven years after that the beneficiaries sued the transferees. The transferees contended that the transfers were merely voidable and that the beneficiaries’ action was barred by the statute of limitations and laches. The circuit court held that the transfer was void ab initio and that therefore the action could proceed, a conclusion with which the Supreme Court of Appeals of West Virginia agreed in its opinion in Haymond v. Haymond, 900 S.E.2d 10 (W. Va. 2024).
Trust terms allow investments contrary to default rules. The opinion of the South Dakota Supreme Court in Redlin v. First Interstate Bank, 2 N.W.3d 729 (S.D. 2024), clearly illustrates the ability of trust terms to alter default rules governing the investment of trust property. The court held that terms waiving the trustee’s compliance with the Prudent Investor Act, authorizing investing “irrespective of any risk, nonproductiveness, or lack of diversification,” and expressly authorizing the deposit of trust property into savings or checking accounts, led to the trustee’s receiving a summary judgment in a suit brought by a beneficiary alleging breach of duty where the entire trust corpus consisted of $3 million in cash that earned less than $900 in the first year of the trust. The court held that the trust terms meant that the trustee could be liable only if it acted in bad faith or with gross negligence and that the loss of potential return did not amount to either.
Revocable trust may be modified by a writing signed by the settlor and delivered to the trustee. The California Supreme Court in Haggerty v. Thornton, 542 P.3d 645 (Cal. 2024), resolved a conflict among the California district courts, holding that under Calif. Prob. Code § 15402, the settlor or other person holding the authority to modify a revocable trust may do so by the method for revocation set forth in Calif. Prob. Code § 15401—a writing signed by the settlor or other person and delivered to the trustee—unless the terms of the trust set forth a method of modification and made that method exclusive.
Trust modified by transfer to another trust. Identical to U.T.C. § 602, Colo. Rev. Stat. § 15-5-602 allows the modification or revocation of a revocable trust by any method set forth in the trust terms, and if that method is not made exclusive, by any other method “manifesting clear and convincing evidence of the settlor’s intent.” The Colorado statute requires the use of “sole,” “exclusive,” “only,” or similar language to make the specified method exclusive. In Matter of Hunn Living Trust, No. 23CA108, 2024 WL 2066310 (Colo. May 9, 2024), the Colorado Supreme Court held that the statute abrogates Colorado common law requiring strict compliance with the method of revocation set forth in the trust terms. The court reversed a district court order seemingly based on the prior common law and remanded for a determination of whether the facts surrounding the settlor’s transfer of property held in the settlor’s revocable trust to another trust the settlor created showed the required intent by clear and convincing evidence.
Context of intrafamily transactions controls whether payments are loans or gifts. An estate appealed a Tax Court decision on an estate tax deficiency based on findings concerning multiple payments between the decedent and her son over a 32-year period. In Estate of Mary P. Bolles v. Comm’r, 133 A.F.T.R.2d 2024-1235 (9th Cir. 2024), the Ninth Circuit affirmed the Tax Court’s decision that payments over the initial four-year period in the 1980s were loans to the son to support his architecture business. She had frequently loaned the architecture practice money when her husband owned it, the practice repaid the loans when the husband managed it, and she had a real expectation of payment once the architecture practice became solvent again. The Ninth Circuit also affirmed that payments made to her son over the remaining years were gifts, the default of intrafamilial payments. The context had changed, and the decedent no longer had an expectation of repayment: the son did not repay the initial loans, he had signed a document noting he had neither the assets nor earning capacity to make repayments, and the decedent had excluded him from her personal trust. The Ninth Circuit also held that the estate was not entitled to recover administrative and litigation costs as the Commissioner’s findings were substantially justified.
In International Law, African Courts, Patriarchal Inheritance Systems and Women’s Rights, 51 Denv. J. Int’l. L. & Pol’y 59 (2022), John Mbaku explores how customary laws and traditional practices in many African countries often deny women and girls the right to inherit land, despite international and regional legal recognition of their property rights. Although legislation is needed to address this issue, progressive judicial rulings, such as the Court of Appeal of Botswana’s decision in Ramantele v. Mmusi, are providing important lessons on how to protect women’s inheritance rights from discriminatory customary laws and practices.
In You Have Broken My Trust: Removal of Trustees Revisited in the Connecticut Uniform Trust Code, 37 Quinnipiac Prob. L. J. 183 (2024), Marjorie Richardson discusses Connecticut’s adoption of the Uniform Trust Code in 2020 and how courts can establish precedent to achieve a fairer balance between settlors and beneficiaries. Richardson suggests making a removal statute mandatory to ensure beneficiaries’ ability to remove trustees under specified conditions. Alternatively, she suggests simplifying the process for “cause” removal yet empowering probate courts to appoint co-trustees. These suggestions can modernize trust laws and enhance beneficiary rights in Connecticut.
In An Unclear Burden: Proving Undue Influence in Connecticut, 37 Quinnipiac Prob. L.J. 31 (2024), Jeffrey Cooper outlines the difficulties in defining and proving undue influence in will contests, emphasizing the shifting burden of proof under Connecticut law. Cooper emphasizes the need for the Connecticut Supreme Court to provide clear guidance on this crucial issue.
In How Adopting Uniform Rules for Electronic Signing and Acknowledgment of Formal Wills and Non-Testamentary Estate Planning Documents Can Increase Access to Estate Plans, 37 Quinnipiac Prob. L. J. 161 (2024), Sarah Stewart explains how modernizing estate planning laws to allow for electronic signatures and witnesses would improve document accessibility, particularly for marginalized communities, yet simplify legal processes and decrease related expenses.
In Toward a New Generation of “Caregiver Statutes,” 31 Elder L. J. 239 (2024), Jamie McWilliam explores the evolution of caregiver statutes in probate law, which presume gifts to caregivers are invalid because of undue influence on vulnerable elders. These statutes have faced both praise and criticism, but little comparative analysis has been done. In this article, McWilliam provides a historical examination and proposes a new version of a caregiver statute to address current challenges while preserving the goal of combating elder abuse.
In Ruminations of an Accidental Probate Judge, 66-May Orange Cnty. L. 50 (2024), Hon. Gerald Johnston reflects on his experience transitioning to probate court in 2002, highlighting the challenges and many rewards of practicing in this field of law. Despite initial struggles, he found a true passion in probate work, where he saw practitioners make a meaningful impact on people’s lives and families in need every day.
In A Billionaire’s Dilemma: The Use of Self-Settled Asset Protection Trusts to Evade Economic Sanctions During Wartime, 37 Quinnipiac Prob. L.J. 40 (2024), Mark D’Augelli examines how US sanctions on Russian oligarchs are circumvented through complex asset protection methods like self-settled trusts. Despite efforts by the White House and Department of State, the use of these trusts, along with dual citizenship and intricate financial structures, complicates sanction enforcement. D’Augelli stresses the necessity of global financial transparency to hold Russian oligarchs accountable. He proposes legislative actions domestically and international collaboration to diminish financial secrecy in the trust business to enforce economic sanctions and slow down Russia’s war funding.
In RAP Traps, 68 S.D. L. Rev. 374 (2023), Thomas Simmons explores how South Dakota’s repeal of the Rule Against Perpetuities in 1983 sparked the growth of the state’s trust industry. This article, the first of a two-part series, examines the traditional common law version of the Rule Against Perpetuities, its complexities, and inadequate reforms. The second part will delve into South Dakota’s unique application of the rule and the legislative repeal process.
In Freedom to Give, Devise, and Bequeath, 37 Quinnipiac Prob. L. J. 111 (2024), Raymond O’Brien discusses the desire of older, wealthy individuals to freely distribute their wealth without facing high legal costs and lawsuits. He suggests using modern estate planning tools such as inter vivos trusts and directed trusts to reduce the chances of disputes. O’Brien examines the experiences of three wealthy figures, Seward Johnson, Huguette Clark, and Sumner Redstone, offering a different approach to prevent expensive conflicts and ensure their intended legacies.
In Is a Will Better Than Intestacy, 92 U. Cin. L. Rev. 631 (2024), Kristine Knaplund explores how scholars have advocated for courts and lawmakers to shift from strict rules for making wills to instead embrace functionalism to encourage more people to create wills. Even with more relaxed requirements, however, it is still uncertain whether these changes have led to fewer legal disputes or faster probate processes. In this enlightening article, Knaplund compares several empirical studies to ask five critical questions: “Are deathbed wills rare? Are there more wills probated today because of functionalism? Is there less litigation in the probate courts today? Are there fewer abandoned cases today? And finally, are wills better than intestacy because the probate period is shorter than that of intestate estates?”
Arizona adopts the Uniform Partition of Heirs Property Act. 2024 Ariz. Legis. Serv. Ch. 122.
Colorado enacts the Uniform Non-Testamentary Electronic Estate Planning Documents Act. 2024 Colo. Legis. Serv. Ch. 24.
Georgia authorizes transfer on death deeds. 2024 Ga. Laws Act 496.
Idaho passes the Revised Unclaimed Property Act. 2024 Idaho Laws Ch. 27.
Indiana extends the Rule Against Perpetuities period to 360 years after the creation of a nonvested property interest. 2024 Ind. Legis. Serv. P.L. 61-2024.
Indiana revises statutes governing transfer on death deeds. 2024 Ind. Legis. Serv. P.L. 99-2024.
Iowa removes the presumption that a spendthrift provision is a material purpose of a trust. 2024 Ia. Legis. Serv. H.F. 2517.
Minnesota provides the grantee of a transfer on death deed with an insurable interest in the property. 2024 Minn. Sess. Law Serv. Ch. 91.
Nebraska adopts the Uniform Community Property Disposition at Death Act. 2024 Nebr. Laws L.B. 1317.
Oklahoma enacts the Revised Uniform Fiduciary Access to Digital Assets Act. 2024 Okla. Sess. Law. Serv. Ch. 115.
Oklahoma passes the Oklahoma Standby Guardianship Act. 2024 Okla. Sess. Law Serv. Ch. 41.
South Dakota authorizes remote notarization. 2024 S.D. Laws Ch. 71.
Utah enacts optional forms for transfer on death deeds and their revocation. 2024 Utah Laws H.B. 24.
Utah recodifies estate planning statutes. 2024 Utah Laws S.B. 79.
Vermont authorizes remote witnessing of and digital signatures on advance directives. 2024 Vt. Laws No. 88.
Washington adopts the Uniform Electronic Estate Planning Documents Act. 2024 Wash. Legis. Serv. Ch. 188.
Washington passes the Uniform Special Deposits Act. 2024 Wash. Legis. Serv. Ch. 23.
West Virginia permits the electronic execution of trusts. 2024 W. Va. Laws H.B. 5561. n
