[1] Nile and Georgia Richmond were married in 1985. Nile's daughter from a previous marriage is Brenda Gittings, and Georgia's son from a previous marriage is William Deal. While alive, Nile and Georgia executed a series of trusts that, inter alia , provided that upon their deaths, interests in certain real estate acquired by Nile during his life would be divided, with one-third going to Brenda, one-third going to William, and the remaining one-third divided equally between Nile and Georgia's grandchildren.
[2] Nile passed in 1995, and the assets from his inter vivos trust passed into another trust, of which Brenda, William, and Georgia were co-trustees. Soon after Nile's passing, Georgia reformed her trust agreements and transferred title to the real estate ("the Transfers") such that Brenda and the grandchildren were no longer to receive any interest in it upon her death, which occurred in 1997. The Transfers were made without court approval and without disclosing all of the material facts to Brenda.
[3] In around 2010, after the real estate began producing significant amounts of income through coal and gas leases, Brenda began asserting an interest in it. In 2013, William petitioned the trial court to approve the Transfers. After a bench trial, the trial court approved the Transfers, but, in 2018, the Indiana Supreme Court held that William was not, in fact, entitled to court approval of them and remanded the matter to the trial court for further proceedings. In September of 2019, the trial court declared the Transfers void ab initio and ordered a constructive trust to facilitate the transfer of the real estate and income received since the Transfers to Brenda and the other original beneficiaries. William appeals, arguing that the trial court clearly erred in declaring the Transfers void ab initio and in ordering the creation of a constructive trust. Because we disagree, we affirm.
Facts and Procedural History[4] Nile was originally from West Virginia and, during his lifetime, acquired hundreds of acres of real estate and mineral interests in that state. (Appellee's App. Vol. II p. 10). Further underlying facts of this case were related as follows by the Indiana Supreme Court:
Nile and Georgia Richmond married in 1985. They had no children together, but each had a child from a previous marriage: Brenda Sue Gittings (Nile's daughter) and William Deal (Georgia's son).
A. The trust agreements.
As part of their estate planning, Nile and Georgia executed two trust agreements, each identified by the settlor's name: the Nile D. Richmond Primary Trust Agreement ("NDR Trust Agreement"), with Nile as settlor; and the Georgia L. Richmond Primary Trust Agreement ("GLR Trust Agreement"), with Georgia as settlor. Each settlor, while alive, could modify his or her respective agreement, but when Nile and Georgia executed the agreements, the terms mirrored one another.
Each agreement set up a Primary Trust, a Trust A, and a Trust B. The NDR Trust Agreement thus established the NDR Primary Trust, NDR Trust A, and NDR Trust B. And the GLR Trust Agreement similarly established the GLR Primary Trust, GLR Trust A, and GLR Trust B. After executing the trust agreements, Nile and Georgia funded each primary trust with, among other assets, undivided one-half interests in land and minerals they owned in West Virginia and Indiana.
The primary trusts were inter vivos trusts, holding Nile's and Georgia's primary trust estates during each of their lives. Once the settlor died, the assets of that primary trust estate would be distributed to the respective Trust A and/or Trust B.
The initial trustees were the settlor and the spouse. But if the settlor died first, the surviving spouse would not be the sole trustee of Trust A and Trust B. The trust agreements made this explicit: "In no event shall the surviving spouse serve as sole Trustee after the death of [the] Settlor." Instead, after the settlor's death, the surviving spouse, "along with William H. Deal and Brenda Sue Gittings, shall serve as Co-Trustees of Trust A and Trust B."
Trust A—a marital-deduction trust with provisions removing certain discretion from the surviving spouse—was designed to provide for the surviving spouse's support, maintenance, and health. It was to receive no less than the smaller of $100,000 or the balance of the settlor's primary trust. Once the surviving spouse died, assets remaining in Trust A would go into Trust B.
Apart from receiving any Trust A leftovers, Trust B was set up to receive two other classes of assets: those transferred directly to Trust B by the decedent settlor's last will, and those remaining in the settlor's primary trust estate after its distribution to Trust A.
Trust B would be distributed after both the settlor's and the spouse's deaths. Each trust agreement originally instructed that the assets collected in its Trust B be distributed in thirds: one third to Brenda, one third to William, and one third divided equally among Nile's and Georgia's grandchildren.
B. The amended agreement and the property transfers.
Nile died in January 1995, leaving Georgia as the surviving spouse and co-trustee—with Brenda and William—of NDR Trust A and NDR Trust B.
About six months later, Brenda gave birth to her son, Marc. Concerned about whether Marc—having been born after Nile's death—was part of the beneficiary class of grandchildren, Brenda asked Georgia for a copy of "the trust." At this point, although Brenda's understanding was that Nile and Georgia had each created a separate trust, she didn't know details about their terms; she had neither received a copy of the NDR Trust Agreement from Nile nor seen a copy of the GLR Trust Agreement. Based on what her father told her, Brenda thought that "[a]fter [Nile's] death whatever was in his trust would go into Georgia's for safekeeping."
Soon after Brenda requested "the trust," Georgia distributed the NDR Primary Trust estate to NDR Trust A and NDR Trust B, and amended the GLR Trust Agreement, removing Brenda and Marc as beneficiaries.
Georgia next sent Brenda a copy of the NDR Trust Agreement along with four deeds, a lease assignment, and a note asking Brenda to sign and return the deeds and assignment. The deeds and assignment referenced the GLR Trust Agreement and purported to convey the one-half interests in West Virginia and Indiana property from NDR Trust A to "Georgia L. Richmond, as Trustee ... under a Trust Agreement ... known as the [GLR Trust Agreement]." Georgia did not, however, send Brenda a copy of the GLR Trust Agreement, original or amended.
Seeking advice, Brenda turned to legal counsel at the office where she worked as a paralegal. Brenda's counsel sent a letter to Georgia's attorney, explaining that Brenda sought to determine "her status under her father's Will and his Primary Trust Agreement," and acknowledging that Brenda had received a copy of "the Trust Agreement" from Georgia. In the letter, Brenda's counsel also asked Georgia's attorney for documents "bearing materially upon Brenda's interest as trustee or beneficiary."
Georgia's attorney responded with documents related to the NDR trust assets. He listed the assets in NDR Trust A, explained that "[NDR] Trust B contains the rest and remainder of the Primary Trust," and set out the assets in Trust B. But he did not include the GLR Trust Agreement, believing that he was not authorized to disclose Georgia's information to a third party.
Although neither Brenda nor her counsel had seen the GLR Trust Agreement that the deeds and assignment referenced, Brenda signed the deeds and assignment, and her attorney sent them to Georgia's counsel. Georgia and William signed similar deeds—not the same documents that Brenda signed, but ones that likewise purported to transfer the West Virginia and Indiana property from NDR Trust A to Georgia as trustee under the GLR Trust Agreement.
Georgia died in March 1997. Her death triggered distribution of the NDR trust estate through NDR Trust B—in thirds to Brenda, William, and the grandchildren, including Marc. In June 1997, Brenda signed the final account and petition to settle and close NDR Trust B. This document showed that the trust estate would be completely depleted upon the "final distribution" of the "balance in trust" to Brenda, William, Marc, and the other grandchildren. Under that distribution—outlined in the accounting—Brenda and William each received almost $91,000 and each grandchild received approximately $22,710 placed in individual trusts.
Not long after Brenda signed the final account, an attorney who helped administer NDR Trust B and who handled the administration of Georgia's estate sent Brenda a copy of the amended GLR Trust Agreement. When Brenda received it around July 14, 1997, she learned that she and Marc had been eliminated as beneficiaries and that everything in the GLR trust would go to William. As the GLR trust's sole beneficiary, William received the property that the deeds—both the ones that Brenda signed and the ones that William and Georgia signed—purported to transfer in 1995 from NDR Trust A to Georgia as trustee of the GLR Primary Trust.
After receiving the GLR Trust Agreement and learning that she and Marc were not beneficiaries, Brenda was "pretty downtrodden for quite a while." But she did not turn to her legal counsel for advice about the GLR Trust Agreement and its amendments. Nor did she bring any claims at that time or object to the executor's final
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