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In Re Tamplin (6/7/2002) sp-5577
In Re Tamplin (6/7/2002) sp-5577
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Last ) Supreme Court
No. S-9830
Will and Testament of )
) Superior Court No.
) 1JU-99-40 PR
)
GAY DAWN TAMPLIN ) O P I N I O N
) [No. 5577 - June 7, 2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Jan Van Dort, Juneau, for
Appellant Larry Daly. BethAnn Boudah
Chapman, Faulkner Banfield, Juneau, for
Appellee Gayleen Hays.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Gay Dawn Tamplin died in October 1998 leaving a will
executed in May 1998 and a revocable inter vivos trust created in
1993. The 1993 trust was funded solely by her condominium and
the 1998 will purported to leave the condominium to her partner,
Larry Daly. The superior court held that the will did not revoke
the trust or withdraw the condominium from the trust and that the
condominium was transferred to Gay Dawns daughter, Gayleen, on
Gay Dawns death under the terms of the trust. We affirm the
decision of the superior court and hold that in the circumstances
of this case a will cannot revoke an inter vivos trust.
II. FACTS AND PROCEEDINGS
A. Facts
Gay Dawn Tamplin died on October 6, 1998. Six years
earlier, in October 1992, Gay Dawn met Larry Daly. Sometime
shortly after meeting, Gay Dawn and Larry began living together
in Gay Dawns Spaulding Beach condominium located at Auke Bay.
Gay Dawn and Larry continued to live together in the condominium
until Gay Dawns death.
Gay Dawn established a revocable inter vivos trust on
September 20, 1993. The trust was initially funded solely by the
condominium that Gay Dawn owned. Gay Dawn deeded the condominium
to the trust by quitclaim deed. The deed was recorded in the
Juneau recording district on October 1, 1993. Gay Dawn was the
sole beneficiary of the trust during her lifetime and her
daughter, Gayleen Hays, was the trustee. Mark Hays, Gayleens
husband, was the alternate trustee if Gayleen was unable to
perform the trustees duties.
Gay Dawn reserved the right to make additional
contributions to the trust, or to withdraw all or any part of the
properties from the trust, during her life. The trust did not
specify a means of revocation. Upon Gay Dawns death, the trust
was to terminate and the property was to go to Gayleen if she was
living. If Gayleen was not living, the property was to be
distributed in the following order based on who was living:
Gayleens daughter, Serina; Mark; and then Larry.
In May 1998 Gay Dawn was diagnosed with pancreatic
cancer and was not expected to live much longer. While in the
hospital on May 9, 1998, Gay Dawn drafted a document titled To
whom it may concern my Last Will & testament. In the will, Gay
Dawn expressed her love for Larry and purported to leave him the
condominium. Gay Dawn also expressed her love for Gayleen, Mark,
and Serina and her wish that the family decide what to do with
her personal belongings. The will does not mention the trust and
does not attempt to expressly withdraw the condominium from the
trust. Gay Dawn signed the will twice; the will was also signed
by a notary public. The will was apparently not shown to Mark or
Gayleen until sometime in September 1998, shortly before Gay
Dawns death.
Gayleen gave Larry notice to quit the condominium on
November 4, 1998, which Larry did. In March 1999 Larry filed a
lis pendens against the condominium to keep Gayleen from selling
it. The lis pendens was based on his belief that the condominium
was a probate asset that he was entitled to under the May 1998
will.
B. Proceedings
In March 1999 Larry petitioned the superior court for
formal probate of Gay Dawns May 1998 will and appointment of
Larry as personal representative. Gayleen filed an opposition to
Larrys petition, claiming that the May 1998 will was invalid
because Gay Dawn lacked testamentary capacity and Larry exerted
undue influence upon Gay Dawn. Gayleen also asked the court to
appoint her as the personal representative of the estate and
asserted various counterclaims against Larry. Finally, Gayleen
filed a motion to declare the condominium an asset of the trust
and for removal of the lis pendens filed by Larry against the
condominium. Larry opposed Gayleens motion to declare the
condominium an asset of the trust and filed a cross-motion for
summary judgment.
The superior court held that Gay Dawns 1998 will was
not a sufficient act to revoke or modify the trust. The superior
court found that the condominium was transferred to the trust by
quitclaim deed and that the deed was recorded in the Juneau
recording district. A transfer of this nature, the superior
court held, required more than a testamentary wish in a will to
reconvey the condominium to Gay Dawn. To remove the condominium
from the trust, the superior court stated that an express wish to
revoke the trust or a request to the trustee to reconvey the land
was needed. The superior court reasoned that a person cannot
pass on what she does not own. Since the will became effective
at death but the trust gave Gay Dawn only a life interest, she no
longer owned the condominium when the will became effective. The
superior court held that there was no legal act that evidenced
Gay Dawns intent to remove the condominium from the trust. As a
result of this ruling, the condominium passed to Gayleen.
Larry appeals.
III. STANDARD OF REVIEW
Whether Gay Dawns 1998 will revoked her trust or
withdrew the condominium from the trust is a question of law. We
exercise our independent judgment on questions of law.1 We adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy.2
IV. DISCUSSION
The Superior Court Did Not Err in Finding that the 1998 Will
Did Not Revoke the Trust or Withdraw the Condominium from
It.
Larry argues that the superior court erred in finding
that Gay Dawns 1998 will did not revoke the trust.3 Larry
contends that the superior court should have focused on giving
effect to the decedents final expression of intent as to the
disposition of the condominium. Larry states that the last,
clear statement of donative intent should be given effect
regardless of whether that statement is found in a trust, will or
other legally valid document. In support of this argument, Larry
relies on AS 13.06.010.4
We have defined a trust as a fiduciary relationship
with respect to property, subjecting the person by whom the title
to the property is held to equitable duties to deal with the
property for the benefit of another person, which arises as a
result of a manifestation of an intention to create it. 5
Specifically, an inter vivos trust is a trust that is created and
takes effect during the settlors lifetime.6 The settlor is the
person who creates the trust.7 A trust is revocable by the
settlor if and to the extent that by the terms of the trust he
reserved such a power.8 We have not previously ruled on the
appropriate means of revocation of an inter vivos trust when no
means are specified by the terms of the trust document.
Here, the parties do not dispute the validity of the
trust or that it was revocable by Gay Dawn. It is also
undisputed that the trust terminated on Gay Dawns death. The
validity of the will is not contested in these proceedings. The
sole question here is whether the condominium is part of Gay
Dawns probate property under the 1998 will or remains in the
trust.9
Courts of other states have found that a will cannot
terminate a trust where the power to revoke the trust ends with
the settlors death.10 In Ridge v. Bright,11 Lottie Roscoe McMillan
created a trust funded by stock for her benefit during her
lifetime and then the stock vested absolutely in her niece,
Virginia Bright, after her death.12 McMillan subsequently
executed a will that specifically devised her automobile to
Bright and also made Bright a residuary beneficiary of the will.
The executor of McMillans will challenged the trust, contending
that it was revoked by gifts made to Bright in the will. The
North Carolina Supreme Court held that a will does not become
effective until death and, unless the trust instrument provides
otherwise, the power to revoke a trust must be exercised before
the death of the settlor.13 Therefore, McMillans devise to Bright
in the will did not revoke the trust.14
The Alaska legislature has followed the same path and,
in 2000, decided that it is the policy of this state not to allow
a will to revoke a trust. In AS 13.36.340,15 the legislature
rejected the relatively more lenient trust revocation approach of
the Uniform Trust Code16 and provided that the writing used to
revoke a revocable trust must be other than a will.17
In light of the legislatures enactment of AS 13.36.340,
we adopt the rule that a will cannot revoke a trust where the
trust does not so provide. It is true that AS 13.36.340 does not
control this case because the statute was enacted in August 2000,
long after the execution of Gay Dawns 1998 will and her October
1998 death.18 However, through the statute, the legislature has
made it clear that it is the policy of this state not to allow
revocation of a revocable trust by will. In other cases, we have
adopted a statutory approach as the common law to govern the
interim period before the statute becomes effective.19 By doing
this, we have tried to maintain consistency and predictability in
the law governing situations such as this, where the common law
rule appears consistent with the legislatures subsequent policy
declaration, or where the common law rule is unsettled. We find
it appropriate to adopt the statutory rule in this case in order
to provide continuity between the common law and AS 13.36.340.
V. CONCLUSION
We AFFIRM the superior courts ruling that the 1998 will
did not revoke the inter vivos trust or serve to withdraw the
condominium from the trust.
_______________________________
1 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
2 Id.
3 Although the superior court found both that the 1998
will did not revoke the Trust [and did not] serve to withdraw the
condominium from the Trust, the analysis of these two findings is
the same for two reasons: (1) Larry did not present any separate
arguments for withdrawal, and (2) the trust is funded solely by
the condominium, which means that withdrawing the condominium
would be tantamount to revoking the trust.
4 AS 13.06.010 states in relevant part:
(b) The underlying purposes and policies of
AS 13.06-AS 13.36 are to
. . . .
(2) discover and make effective the
intent of a decedent in distribution of the
decedents property . . . .
5 Alaska State Employees Assn v. Alaska Pub. Employees
Assn, 825 P.2d 451, 459 (Alaska 1991) (quoting Restatement
(Second) of Trusts 2 (1959)).
6 Blacks Law Dictionary 1516 (7th ed. 1999).
7 Restatement (Second) of Trusts 3 (1959).
8 Id. at 330.
9 Larry expressly abandons the issues involving the award
of partial judgment and attorneys fees in his brief.
10 See Gabel v. Manetto, 427 A.2d 71, 74 (N.J. Super. App.
Div. 1981) (stating that [s]ince a will does not take effect
until after a testators death, it is not the proper instrument to
revoke a trust when the power to do so is an inter vivos power);
Barnette v. McNulty, 516 P.2d 583, 586 (Ariz. App. 1974) (stating
that the trust instrument stated that revocation could occur only
during the lifetime of the settlor and since the will he executed
did not take effect during his lifetime, we cannot consider the
provisions of the will as a revocation of the trust); cf. Mayer
v. Tucker, 141 A. 799, 800 (N.J. 1928) (holding that there was
not sufficient evidence of settlors intent to revoke, but, even
if there was, a trust could not be revoked by the will because
the right had to be exercised during the life of the settlor).
11 93 S.E.2d 607 (N.C. 1956).
12 Id. at 608.
13 Id. at 613.
14 Id. at 613.
15 AS 13.36.340 states in relevant part:
(a) A trust that is revocable by the settlor
may be modified or revoked in whole or in
part by
(1) substantial compliance with a method
of modification or revocation provided in the
trust instrument; or
(2) a writing, other than a will, signed
by the settlor and delivered to the trustee
during the lifetime of the settlor, except
that, if the trust instrument expressly makes
the method of revocation provided in the
trust instrument the exclusive method of
revocation, the trust may not be revoked
under this paragraph.
16 The Uniform Trust Code has never been adopted in
Alaska.
17 AS 13.36.340(a)(2). The only exception to this rule is
where the trust document specifically allows for revocation by
will. AS 13.36.340(a)(1). That situation is not presently
before us.
18 AS 01.10.090 states that [n]o statute is retrospective
unless expressly declared therein.
19 See Hansen v. Stroecker, 699 P.2d 871, 874 (Alaska
1985) (quoting Massachusetts Supreme Courts statement that
[a]lthough the statute operates prospectively, the Legislature
has clearly expressed the policy of the Commonwealth and we feel
that this court is justified in applying that policy to the
provisions under consideration in deciding whether the wait and
see approach should be applied to the rule against perpetuities);
Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980) (holding
that new criminal sentencing standards not in effect at the time
of the crime were useful and relevant in the determination of an
appropriate sentence under the present circumstances as the most
recent expression of legislative policy).
