Estate of Sanders, Matter of, 75699

• Decision Date: 13 December 1996
• Docket Number: No. 75699,75699
• Citation: 929 P.2d 153,261 Kan. 176
• Parties: In the Matter of the ESTATE OF Ellen M. SANDERS, Deceased.
• Court: Kansas Supreme Court

Page 153

929 P.2d 153

261 Kan. 176

In the Matter of the ESTATE OF Ellen M. SANDERS, Deceased.

No. 75699.

Supreme Court of Kansas.

Dec. 13, 1996.

Syllabus by the Court

1. A written instrument may be construed and its legal effect determined by an appellate court regardless of the construction made by the trial court.

2. The same rules that apply to the construction of wills apply to the construction of trusts and most other written instruments.

3. If the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction.

4. In considering a will, a court cannot begin by inferring a testator's intention and then construe the will to give effect to such intention, however probable it may be, nor can it rewrite the will, in whole or in part, to conform to such presumed intention. It is the duty of a court to construe, not to construct, a will.

5. Where a trust document contains specific provisions to be complied with, they are required to be followed.

6. If a settlor reserves a power to revoke a trust only in a particular manner and under particular circumstances, the settlor can revoke the trust only in that manner or under those circumstances.

7. A settlor's general testamentary disposition of the settlor's property is ineffective to exercise a general or unrestricted power to revoke or modify an inter vivos trust.

8. The revocation of an inter vivos trust requires an express statement and cannot be accomplished through implication.

9. The settlor of an inter vivos revocable trust who reserves the power to amend or revoke the trust during the settlor's lifetime by a writing delivered to the trustee which specifies the terms of such amendment or revocation, does not amend or revoke the trust by the execution of a will void of any statement or provision relating to the existing trust.

Paul Arabia, Wichita, argued the cause and was on the brief, for appellant Bill Sanders.

Philip W. Unruh, argued the cause and was on the brief, for appellant Mac Sanders.

Kenneth F. Beck, of Beck & Beck Law Office, Wichita, argued the cause and was on the brief, for appellee Patricia Bergman.

LARSON, Justice:

This case presents for our review the first impression question in Kansas of whether a will which made no reference to a preexisting inter vivos trust had the legal effect of revoking the trust.

Although our decision is based on the construction of the applicable legal documents whose provisions we will fully set forth, we will also recite facts surrounding their execution.

On November 29, 1990, Ellen M. Sanders executed a restatement and amendment of the Ellen M. Sanders Trust Agreement dated July 23, 1990. Ellen was the grantor, trustee, and lifetime beneficiary of the trust.

The trust agreements dated July 23, 1990, and November 29, 1990, were both amendable and revocable in Part I, Paragraph 2 of both documents:

"TRUST REVOCABLE BY ELLEN M. SANDERS. This Agreement may be amended from time to time, and may be revoked partially or fully by ELLEN M. SANDERS during her lifetime by a writing delivered to the Trustee, which shall specify the term of such amendment or revocation. No amendment hereto shall increase the duties and responsibilities of the Trustee without their consent."

The amended trust designated Ellen's brother, Frank Palmer, as successor trustee upon Ellen's death or her inability to act, and provided the following statement relating to the successor's service during Ellen's lifetime:

"If at any time during Grantor's lifetime she is under a legal disability, or resigns in writing, or, if in the opinion of Frank Palmer, Grantor's brother, Grantor is unable to properly manage her affairs by reason of illness or mental or physical disability, or is determined unable to act as Trustee by reason of incapacity as determined by a commission of two (2) persons duly licensed to practice medicine and surgery by the State Board of Healing Arts, Grantor's brother, Frank Palmer, shall carry out the provisions contained herein as successor trustee."

Frank Palmer was a signatory party to the trust in his capacity as successor trustee.

The dispositive provisions of the amended trust stated the principal and income should be used for Ellen's benefit during her lifetime. It then provided that after Ellen's death, the trust property should be held in trust for a period of 10 years with the income payable to her son, Mac Sanders, and her grandson, Bill Sanders, in equal shares. Upon termination of the trust, 480 acres of designated real property in Harper County, Kansas, was to be distributed to Mac Sanders, 480 acres of different designated real property in Harper County, Kansas, was to be distributed to Bill Sanders, and an undivided one-ninth interest in certain real property was to be distributed equally to Mac Sanders, Bill Sanders, and Patricia Bergman, with all the residue of the trust to be divided equally among Patricia Bergman, Mac Sanders, and Bill Sanders. The November 29, 1990, amendment of the trust had the effect of removing Patricia Bergman's son, Kenneth, as a beneficiary and of reducing Patricia's share to a one-third interest in a single parcel of land and the residuary.

The trust was fully funded by the execution and recording of deeds of conveyance of the real property to Ellen as trustee of "the Ellen M. Sanders Trust Agreement, dated July 23, 1990." Schedule A attached to the trust agreement also stated the trust corpus was to include: "All personal property of every kind wherever located including specifically but not limited to all household goods, personal effects, jewelry, clothing, furniture, and textures and all items in the home at 104 W. 13th, Harper, Harper County, Kansas."

Contemporaneous with execution of the amended trust, Ellen executed a pour-over will and a durable power of attorney. The pour-over will, dated and executed November 29, 1990, left her entire estate to the trust, but provided that in the event the trust no longer existed or could not take, Ellen's estate was to be divided between Mac Sanders and Bill Sanders, share and share alike. The will specifically stated: "I am not unmindful of my daughter, Patricia Bergman, but am not making any provision for her." The broad durable power of attorney named Frank Palmer and Mac Sanders attorneys-in-fact.

On February 12, 1992, Ellen executed a second amendment to the trust, essentially only reducing the time the trust continued after her death to 5 years rather than 10, but specifically republishing, ratifying, and reaffirming her existing trust agreement as modified by this second amendment. Frank Palmer again signed this amendment as successor trustee.

On June 24, 1992, Ellen executed her third amendment to the trust. This amendment added Mac Sanders and Bill Sanders as successor co-trustees in the event that Frank Palmer was unable to act as successor trustee. Again, the trust agreement as it existed was republished, ratified, and reaffirmed in all respects except as modified by the previous restatement and amendment, the second amendment, and this third amendment. Ellen signed as settlor and trustee, but neither Frank, nor Mac, nor Bill executed the document as successor trustee.

All of the documents that Ellen had executed up to this time had been prepared by attorney Phillip W. Unruh, who represented Bill and Mac at trial.

Several months prior to July 13, 1993, Ellen told Patricia that she wished to change her will, but that she did not wish to consult with attorney Unruh. Patricia recommended attorney Theodore J. Nichols, whom she did not know, but who had performed services for her son and grandchildren.

Nichols met with Ellen once before July 8, 1993, regarding preparation of her will. Attorney Nichols prepared a will as requested by Ellen. The will was executed on July 8, 1993, and divided all of Ellen's property among her surviving children, Patricia and Mac, and her grandson, Bill, in equal shares, specifically providing the following:

"ITEM III

"It is my greatest desire that my family agree and get along with one another in disposition and distribution of my estate. Because I believe that they will be able to do so, I direct that, after the payment of debts, claims, taxes and expenses of administration, all of my remaining property, real, personal, and mixed, and wherever located, be divided equally, in kind, among my surviving children Patty Bergman and Mac Sanders, and my grandson, Bill Sanders, as the three of them may agree.

"In the event that they are unable to agree, then I direct that the Court appoint three independent appraisers to distribute all of my property equally, in kind, to each Patty Bergman, Mac Sanders, and Bill Sanders as a majority of said appraisers may agree. If the appraisers determine that my property cannot be distributed equally in kind, then I direct that all of my property be sold at private sale or public auction, as my Co-Executors, hereinafter named, deem to be in the best interests of my estate and that the proceeds from the sale be distributed equally, share and share alike, to Patty Bergman, Mac Sanders, and Bill Sanders."

None of the beneficiaries were present when the will was executed. After signing the new will, Ellen discovered a few minor typographical errors, and on July 13, 1993, Ellen met again with Nichols and executed a new will correcting these errors. The will specifically contained the dispositive provision previously set forth and provided:

"I, Ellen Sanders, sometimes known as Ellen M. Sanders, hereby make, publish and declare this to be my Last Will and Testament. By this publication I intend to revoke any prior will or codicil."

The will did not make any reference of any nature whatsoever to the Ellen M. Sanders Trust dated July 23, 1990.

Ellen died on September 15, 1994. Patricia offered the July 13, 1993, will for probate. Mac and Bill challenged this will on the grounds...