You are on page 1of 7

Trust Amendment and the Omitted Spouse The court in In re Estate of Prestie, 122 Nev. 70, 138 P.

3d 520 (Nev. 2006), dealt with the issue of whether an amendment to an inter vivos trust could rebut the presumption that a will is revoked as to an unintentionally omitted spouse. Maria and W.R. Prestie were married in Las Vegas in 1987, but they were divorced two years later. Over the years, they maintained a good relationship, and in 2000, when W.R. became ill, Maria moved into his home to take care of him. In 2001, W.R. amended an inter vivos trust he had established in 1994 to provide for a life estate for Maria in his condominium. Shortly thereafter, the couple was married. W.R. passed away nine months later. W.R.'s son, the trustee and beneficiary of the trust, said that W.R.'s amendment to the inter vivos trust rebutted the presumption of revocation of W.R.'s will as to Maria. The pertinent Nevada statute provided for surviving spouses unintentionally omitted from their spouse's will: If a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received. The court concluded that "that an amendment to an inter vivos trust cannot serve to rebut the presumption that a will is revoked as to an unintentionally omitted spouse." "[T]he only evidence admissible to rebut the presumption of revocation for the purposes of NRS 133.110 is a marriage contract, a provision providing for the spouse in the will, or a provision in the will expressing an intent to not provide for the spouse." [citation omitted]. Since there was not a marriage contract, and there was nothing in the will providing for the spouse or expressing an intent not to do so, the will was revoked as to Maria.

Lambeff v. Farmers Co-operative Executors & Trustees Ltd (56 S.A.S.R. 323) Brief Fact Summary. George Lambeff executed a will that did not include a provision for the plaintiff, his daughter from a previous marriage. The plaintiff seeks a provision from Lambeff¶s estate under a statute that distributes a deceased¶s estate to certain family members who were are financially supported by their relative in his or her will or through intestacy. Synopsis of Rule of Law. Under statutory law, a person domiciled in the State or owning real or personal property in the State and by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of the Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, allow that person to receive such provision as the Court deems fit for the

At the time of the deceased¶s death. The deceased¶s estate was not large. Under the act. ³advancement in life´ under the statute may apply to an earlier period in life in the members of the family. Facts. The plaintiff sought provision from her father¶s estate under the Inheritance (Family Provision) Act of 1972. George Lambeff executed a will that disposed property to the defendants. Discussion. nearness in kinship to the decease. the defendants had little assets and families to support. The plaintiff attempted to make re-establish contact with her father seven years after he abandoned her. needs of the applicants. It is significant that the plaintiff would have done better in life if she would have had the proper support.000 from her father¶s estate. even though she did not necessarily need the support. The plaintiff did not commit any acts to disinherit herself. his two sons from his de facto second marriage to Barbara Lambeff. In determining whether to grant an award under the statute. The Court had the power to refuse to make the order in favor of any person such a person¶s character or conduct way such as to disentitled him from the benefit of the Act. Issue. It is enough that her life would have been better and a father is responsible for helping his child to succeed in life. even though she had done rather well in life. education or advancement of the person entitled. a person domiciled in State that would be entitled to a claim of benefit under the act and receive a provision from a deceased¶s estate the Court thinks fit for the maintenance. The plaintiff was left without proper advancement and should receive $20. The phrase. the court must also place itself in the position of the testator and consider that the deceased was wise and just instead of foolish and fond.maintenance. The words ³proper´ means all of the proper circumstances of a case including the size of the estate. The plaintiff suspected the lack of response was due to the animosity he harbored towards her mother and the influence his current wife had over him. Whether the plaintiff was left without proper advancement under a statute that entitled her to a provision from her father¶s estate if he did not provide for her in his will and she would not inherit through intestacy. The deceased abandoned the plaintiff at ten years old and did not support her financially. the court believed that she was entitled to support. He did not make any testamentary dispositions to the plaintiff. but he never responded to her letters that were written at about five yearly intervals. Held. Because the evidence showed that the deceased did not provide for his daughter for half of her childhood. She was abandoned at the age of 10 without any support from her father after that time. That individual may also be precluded from receiving from the estate if their character or conduct is such as to disentitle him from the benefit of the Act. Nicholas and Christopher Lambeff. Yes. Gift to pretermitted child¶s other parent prevents child¶s claim notwithstanding divorce . education or advancement of the person entitled if that person was left without adequate provision for his proper maintenance. education or advancement in life.

the court held that the Arkansas pretermitted heir statute does not apply to a revocable lifetime trust. In Gray v. If Daniel married an eligible Jewish girl within 7 years he would receive his inheritance. 1974 Facts: David Shapira¶s will provide that his three children Ruth. even though the children living at the time of execution of the will were the not the children of the decedent¶s then spouse. Donative Transfers § 34. omitting children from a prior marriage. The decedent died without changing his will. The will provided that if Daniel was married to Jewish girl whom both parents are Jewish. Daniel¶s portion of the estate would go to the State of Israel.W. Gray. Union National Bank(39 Ohio Misc. Both of his sons had conditions on their inheritance.The decedent made a will giving all his estate to his spouse. The decedent and his spouse had a child. Kraemer. Daniel would receive his inheritance. then divorced. 2d 1045 ( Ala.3d 309 (Ark. the constitutional protection of the 14th Amendment is extended from direct state legislative action to the enforcement by state judicial proceedings of private provisions . Shapira v. Mahoning County. 28. when the will was executed. he was not married to an eligible Jewish girl then his inheritance would be held in trust by the executor of the will for 7 years. If after 7 years he was unmarried. the court held that the exception applied to the instant situation.E. The statute creates an exception if. and that its contrary to public policy and unenforceable because of its unreasonableness. that the right to marry is constitutionally protected from restrictive state legislative action. Rhew. 947 So. Daniel a 21 year old college student sought a declaratory judgment the Shapira¶s will was unconstitutional. Daniel. 315 N. The child claimed an intestate share of the decedent¶s estate under the pretermitted child statute. If however. the decedent had one or more children and substantially all of the estate is given to the parent of the omitted child. 2007).2d 825) Status: Ohio Court of Common Pleas.2 which states that a pretermitted heir statute should apply to a will substitute. He alleged that the condition upon his inheritance is unconstitutional restriction on his right to marry. Pretermitted heir statute does not apply to revocable lifetime trust In Kidwell v. then. and that he should be given his bequest free of the restriction. Plaintiff submits. 268 S. that under the doctrine of Shelley v. expressly rejecting Restatement (Second) of Property. or married to an ineligible Jewish girl. Procedural History: None Issues:Whether a will that conditions the receipt of one¶s inheritance upon marrying within a particular religious group unconstitutional as violating on one¶s right to marry? Analysis: Constitutionality:Plaintiff contends. 2006) . Under Alabama law. and Mark would inherit his estate. all provisions for the ex-spouse are revoked.

a testator may restrict a child's inheritance. Kraemer would be applicable. It is the duty of this court to honor the testator's intention within the limitations of law and of public policy. Kraemer. It is a fundamental rule of law in Ohio that a testator may legally entirely disinherit his children. upon the facts as they are. Dissent or Concurrence: None . constitute state action prohibited by the Fourteenth Amendment as much as a state statute. and valid. If the facts and circumstances of this case were such that the aid of this court were sought to enjoin Daniel's marrying a non-Jewish girl. In Shelley v. Holding: No Judgment: The conditions in the will are reasonable restrictions upon marriage. µThese are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. Kraemer owners of neighboring properties sought to enjoin blacks from occupying properties which they had bought. In Shelley v. but not. Plaintiff contends that a judgment of this court upholding the condition restricting marriage would. under Shelley v. then the doctrine of Shelley v. Rather. Rule: A will may contain a provision that the one must marry within a particular religious group as a condition of receiving their inheritance. The court concludes. and not contrary to public policy: The great weight of authority in the United States is that gifts conditioned upon the beneficiary's marrying within a particular religious class or faith are reasonable.¶ In the case at bar. Public Policy A partial restraint of marriage which imposes only reasonable restrictions is valid. Shapira's will conditioning the bequests to his sons upon their marrying Jewish girls does not offend the Constitution of Ohio or of the United States. Kraemer the United States Supreme Court held that the action of the states to which the Fourteenth Amendment has reference includes action of state courts and state judicial officials. that the upholding and enforcement of the provisions of Dr. This would seem to demonstrate that. it is believed. this court is being asked to enforce the testator's restriction upon his son's inheritance. this court is not being asked to enforce any restriction upon Daniel Jacob Shapira's constitutional right to marry. The prerogative granted to a testator by the laws of this state to dispose of his estate according to his conscience is entitled to as much judicial protection and enforcement as the prerogative of a beneficiary to receive an inheritance. Prior to this decision the court had invalidated city ordinances which denied blacks the right to live in white neighborhoods.restricting the right to marry. but which were subjected to privately executed restrictions against use or occupation by any persons except those of the Caucasian race. from a constitutional standpoint. therefore.

(CCH) P60. if in the absolute discretion of the trustee such funds were needed. Mrs. Mr. Rapp¶s will. No. The petition relied upon the probate¶s power to modify or terminate a trust upon consent of all parties.98-1 U.Estate of Rapp v. The tax court held that the probate court erred in reforming the will because it was not ambiguous and there was little or no evidence that Mr.2d (RIA) 1151) Brief Fact Summary.S. the surviving spouse can elect the marital deduction as if the interest passed directly and without restraint to him or her. The state court proceedings were brought for the purpose of directly affecting federal estate tax liability.F.1998 U. Rapp asked the probate court to modify this portion of her husband¶s will so that the trust created by the will would qualify for the marital deduction as a QTIP trust. Rapp sought to modify the testamentary trust so that it would qualify as a QTIP trust under federal estate tax laws. education. Whether the California probate court¶s reformation of the will is binding on a tax court for the purpose of determining the amount of federal estate taxes if the California Supreme Court did not decide the matter nor affirm the result? Held. Rapp. App.304. A probate court decision may be ignored when determining federal tax consequences if the decision is contrary to state law. the value of that interest is not deducted when determining the tax owed. The probate court reformed the will and the tax court held the reformation was improper and that the trust property is a part of the decedent¶s estate. The executor attempted to claim the trust as a QTIP exemption.´ (hereinafter ³QTIP´) trust.T. Synopsis of Rule of Law. and support of his wife Laura B. Richard and David Rapp. She claimed that the trust was a part of the marital deduction gift as defined by section 21520(b) of the California Probate Code. and two children. 81 A. At oral argument. The IRS did not receive notice of the petition and did not appear. Mrs. The tax court was not bound by the California probate court¶s reformation of Mr. The value of property passed directly from a testator to a surviving spouse is deducted before computing federal estate taxes. Facts. Without a decision by the California Supreme Court. If the interest passing to the spouse consists only of a life estate or other terminable interest.R. even when that order is final. Rapp¶s will included a trust that gave the trustees power to use the funds for the proper health. Tax Cas. If the terminable interest qualifies as a QTIP. The California probate court¶s reformation is not binding because the issue before the state court is a federal issue. Rapp alleged that it was her husband¶s intent to create the trust to qualify for the deduction and that he believed that the trustees would pay all of the income of the trust at least annually to or for the benefit of the petitioner during her lifetime.S. The IRS rejected the exemption and the executor appealed.3d 1211. Issue. Bet Rapp died in February 1988 survived by his wife Laura Rapp. Laura Rapp petitioned the probate court to reform the trust in her husband¶s will so that it would qualify as a ³qualified terminable interest property. . Commissioner (140 F. no witnesses were called and no documents were admitted into evidence. the probate court¶s reformation was not binding on the tax court. or its power to modify or terminate the trust due to changed circumstances under the California Probate Code. Rapp intended to create a QTIP trust.

the trust was payable to the settlor and his wife. Pond v. The reformation of the probate court was not binding because the petitioner attempted to have the trust qualify as a QTIP trust for a federal estate tax exemption. the trust failed to make a provision for his wife if he predeceased her. Pond created a trust with his wife that provided income to him and his wife for their lives. The plaintiff requested that the court reform trust to give effect to the settlor¶s intent to provide for her in the event of her death and to have the estate qualify under the martial deduction for federal estate tax purposes. as executrix. The wife petitioned the court to reform the trust to conform to her husband¶s intent to provide for her and have the trust qualify for a surviving spouse marital deduction under federal estate tax laws. to determine whether to elect under Section 2056(b) (7) of the Internal Revenue Code of 1954 to qualify all or a specific portion of the Sidney M. There is clear and decisive proof of a scrivener¶s error because the trust terms suggest the settlor intended to provide for his wife through his trust in the event of his death. Pond (424 Mass. There must be clear and decisive proof of the error. to the trust. the settlor bequeathed all of his tangible personal property to his wife and the residue of hi estate.´ The trust made no provision for the wife in the event of the settlor¶s death. 1991 for the federal estate marital deduction and any marital deduction available under the law of the state in which I am domiciled at the time of my death. Pond created a revocable trust naming himself and his wife as trustees. Pond Revocable Trust dated January17. In his will. 894.) Brief Fact Summary. the IRS was not given proper notice to appear for trial.000 in otherwise avoidable taxes without the deduction.E.´ when the issue reach the age of thirty. both real and personal. Whether there is clear and decisive proof of mistake due to scrivener¶s error in a trust that does not include a provision for the settlor¶s wife upon her death? Held. exclusive and unrestricted discretion. The tax clause in the will authorized his wife. If one of the children predeceased the parents. To qualify under Section 2056. During their lifetime. The settlor and his wife had transferred almost all of their assets into the trust. Facts.Discussion. Sidney M. because the trust grants the wife the . all of the annual income and such principal as the trustees deemed necessary were to be paid to the settlor and his wife.2d 1321. In addition. The settlor most likely intended for the same arrangement to exist if he died before his wife. the trust must provide the surviving spouse with a qualifying income interest for life. ³in her sole. The settlor¶s estate would have had to pay $70. Issue. However.678 N. During the settlor¶s lifetime. The couple transferred all of their assets except their marital home into the trust. Synopsis of Rule of Law.1997 Mass. Also. the trust provided that the deceased child¶s share shall pass ³equally and in equal shares to his/her issue by right of representation. A trust instrument may be reformed where the instrument fails to embody the settlor¶s intent because of scrivener¶s error.

Discussion. the trust may also be reformed to correct the ambiguity in the termination provisions so that the trust may qualify for the marital deduction.power to elect to take the marital deduction. There was clear and decisive proof that the writer made a mistake in making the will because the settlor stated his intention that the trust qualify for a marital deduction. .