Estate Of Mccreath

240 P.3d 412 (2009)

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Nature of the Case

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Facts

Hazel, mother, executed a trust agreement dated July 11, 1992, which designated both mother and D as trustees. The corpus was a family farm, including appurtenant mineral interests, and the trust agreement provides that upon termination, the trust estate is to be divided equally among Hazel's three children. This agreement amends a November 8, 1989 trust agreement for the apparent purpose of naming D as co-trustee replacing Hazel's husband, who was deceased. The trust reserved the right to Hazel at any time or times to . . . revoke . . . in whole or in part, or any provision thereof, by an instrument in writing signed by Hazel and delivered to Trustees. . . . If this Trust is revoked in its entirety, the revocation shall take effect upon the delivery of the required writing to Trustees. On the revocation of this Trust in its entirety, Trustees shall pay or transfer to [mother] as [mother] shall direct in the instrument of revocation, all of the trust estate. The second document is a recorded quitclaim deed dated March 13, 2001, executed by Hazel alone as a trustee of the trust, and conveying the family farm and unrelated mineral interests to D, individually free and clear of the trust. The third is a handwritten will, which was executed May 25, 2005, and, which, for the purposes of this appeal, is presumed to be Hazel's last will and testament. It was handwritten by an attorney, was executed by mother, and was witnessed by the attorney and a nurse. It has mother's name at the top and has no characterization of the instrument, and the text consists of four bullet paragraphs, which state as follows: revoke all prior wills and trusts... give personal property (contents of house) to children in equal shares.....children choose what they want to take all others sold and placed in the residuary.... residuary distributed after expenses. debts + taxes, to Charlotte Mae Ritchy - 80% - Elton Ray McCreath - 10% - Milford Lee McCreath - 10%.....Personal Representative (executor) shall be non-family member. if none can be found to appoint then Charlotte Mae Ritchy (D). The will was delivered to D, and there are allegations that a more formal document was prepared but never executed by mother. Mother passed away over a year after signing the will. Milford and Elton (Ps) sought a declaratory judgment as to the validity and legal effect of the three documents. Ps also alleged claims against D for breach of fiduciary duty, conversion, civil theft, an accounting, and constructive trust. The court concluded that the signature of mother alone, as trustee, on the quitclaim deed was ineffective to transfer the trust assets to D free of the trust. It also concluded that mother's will did not revoke the trust at the time of its execution and delivery to D as co-trustee of the trust. D appealed.