USE OF A REVOCABLE LIVING TRUST AS A PREFERABLE ALTERNATIVE TO PROBATE: GENERAL OBSERVATIONS AND PITFALLS TO AVOID

              This article is intended to address some of the potential factual circumstances which in due diligence should be explored, as well as situations where unforeseen circumstances can involve a trust in unwanted battles between the laws applicable to wills and  contract and property law-based principles of  trusts.[i]  Frequently as a general practitioner, you may experience a client wanting some “estate planning” – but who is ignorant of what the term entails, and usually quite uncertain about any details relating to the matter. In these situations, a good place to start is to assess where the client is – and then determine her estate-planning goals.  The client’s starting point might be a concern that “the government is going to take all my money,” or, “the lawyers and courts will wind up with most of it anyway.” These cavils are often raised by those clients who do not subscribe to publications such as Forbes, but they present good opportunities to start a meaningful discussion about the client’s estate planning needs.  You can disabuse your client of that ever-present fear of “death taxes” by telling her that Oklahoma has repealed estate and gift taxes and that there is not even a requirement to file a federal estate tax return for estates whose total valuation does not exceed $11,580,000.00[ii], and thus tax avoidance is usually only a concern for the ultra-rich.

            From the topic of estate taxes you then segue into an introduction to the benefits of a living trust[iii] and explain that it provides many useful advantages to consider as an alternative to the traditional probate method of winding up one’s post-death affairs and distributing the estate.  Often, after an explanation that the client does not need to base her estate plans on the avoidance of tax exposure, the client will ask whether or not there is any need for an estate plan.  She should be told that there is such need, unless she wants to let the court distribute her estate  according to the laws of intestacy.  The two best methods to achieve the client’s testamentary goals are either by will[iv], or through a trust.[v]  A revocable living trust is usually more efficacious than a simple will; it offers more flexibility and provides helpful lifetime management tools; and it will almost invariably save the client (and/or the objects of client’s future bounty) a great deal of time and money in the long run. At this juncture the client needs to know about the relative costs of probate versus the administration and termination of a revocable trust. Although attorneys charge much more for creation of a trust-centered “estate plan” than for a simple will, trusts – if properly drafted and maintained – can serve not only as functional equivalents of a will, but they also, “unlike wills, are management arrangements that offer significant benefits unavailable from wills during the settlor’s lifetime.”[vi] 

            It is essential for the attorney to be aware of some particular considerations that may impact drafting decisions in formulating a trust-centered estate plan.  As with any aspect of the practice of law, the first rule of the draftor in preparation of a trust instrument is to know the facts. The lawyer should be fully familiar with the client’s distributive intent, the extent of her estate, her family status, and her personal history. Knowledge of these facts is essential research to enable the attorney to avoid, insofar as possible, unforeseen circumstances which could result in legal battles with family members or other putative beneficiaries who believe that they were treated unfairly in the distributive directives of the trust.

Several questions should be answered by the client.  For example, how is title to real property or other assets that will be put into the trust held? Are bank accounts maintained with a “P.O.D. clause?” What other, alternate arrangements for transfer has the client erected (perhaps unwittingly) as bars to the efficient and complete administration and ultimate transfer of this estate through the mechanism of her trust? Who are the named insurance beneficiary(ies)?  Does the client have an antenuptial agreement?  Lacking a thorough working knowledge of all these facts before drafting and executing documents often leads to the creation of an imperfect estate plan. For example: Client wants her home in the country (“Blackacre”) to be distributed equally between her nephew, Jimmy, and her niece, Mary Jane. However, she has unfortunately forgotten to advise that a few years ago she deeded Blackacre to herself and Jimmy as joint tenants.  If this oversight is not caught and corrected, your client’s transfer of her beautiful homestead to the trust will operate only as a severance of the joint tenancy[vii] and the client’s estate-planning revocable trust will possess only a one-half interest as tenant-in-common while Jimmy will have an equal interest outside of the trust. Final result: Jimmy has three-fourths interest and Mary Jane has only a one-fourth interest. Mary Jane, who was informed by her aunt that she and cousin Jimmy would share equally in the estate, will be extremely disappointed by her aunt’s trust. In the worst case scenario Mary Jane will be pounding on your door, writing bar complaints about you – or even consulting another lawyer about suing you. Foresight and caution can avoid this unfortunate and unintended result.

            Enlarging this hypothetical scenario illustrates a flaw (or at least a curiosity) in our existing law: suppose that Mary Jane discovers this problem only days before Auntie would have expired by natural causes, and in a heated confrontation she kills her aunt.  Under this circumstance it appears Mary Jane would still receive a one-fourth interest in Blackacre, although if Auntie had used a will instead of a trust for distributive purposes, Mary Jane would be out of luck.  Oklahoma’s version of the “slayer statute” (84 O.S.§ 231) clearly bars testamentary inheritance from the deceased victim of the beneficiary’s wrongful, criminal act, but the statute may not apply to a trust distribution.[viii]  Thus, in drafting the trust, one should consider inclusion of a clause barring benefits from the trust to anyone who slays the settlor. 

The foregoing fiasco in the division of Blackacre presents just one example of a troublesome circumstance that might have been avoided by careful drafting. There are a plethora of others. The better practice would require the lawyer to independently ascertain how all of the client’s property is held, so that necessary and appropriate changes and transfers may be made to enable a seamless and effective estate plan. Another necessary step is to conduct a complete review of the client’s family and marital history. Has the client been married before, and could there be any lingering transfer restrictions from an earlier divorce? Or was any promise ever made (for example in a heartfelt, handwritten graduation note) that Auntie was going to give Mary Jane a million dollars? Is there another child from some earlier liaison who, though never in attendance at family gatherings, might surprisingly show up on the courthouse steps?

These are just some of the reasons you should employ a detailed questionnaire to be completed by your estate planning clients. All these circumstances and more need to be explored, and the time and effort such exploration will take needs to be factored into what the client will be charged. Once this is explained to the client, she might decide that there is nothing to worry about and opt to proceed without these investigations into the ownership of the intended trust res. In this event, you should recommend that the client sign a waiver form that shields the attorney and her office from responsibility for mishaps that might occur because the client provided incorrect or incomplete information.  After the attorney has been satisfied that she has a clear picture of the terrain upon which she will be operating, it will be easier to properly draft provisions of the trust that comply with the client’s wishes and that anticipate insofar as possible pitfalls that may later arise before the trust is finally determined and distributed. In the remainder of this article is a very brief survey of some – though certainly not all – of the legal quagmires to anticipate and (if possible) to avoid.[ix]

            Let us begin with the circumstances of a married couple. Do they want a joint (or “marital”) trust, or two separate trusts, each mirroring the other? The answer to this question has to be, “it depends on the circumstances.” A joint trust can function quite efficiently for a married couple with no internal family discord, no prior marriage or children from outside the union, and no significant separate income or estate belonging to either of the partners. However, the drafter still must be cognizant of matters which, if not discussed at the time of preparation of the estate plan, may well become troublesome hurdles at a later stage of the estate plan. For example, the perennial worry in such a situation seems to be that after the first spouse dies, the surviving spouse will marry again, and the focus of attention may move away from the children of the first union. What will prevent the surviving spouse from changing the distributive terms of the (formerly) joint trust?  Here are some suggestions to avoid such a disruption of the estate plan. A joint trust (often called something like “The Smith Family Trust”) clearly should state that it is contractual in nature and origin, that it is to provide for the Settlors during their lifetimes with the survivor continuing to be cared for and to have the continuing right of day to day trust management, but that amendments can only be made by joint action of the Settlors/Trustees so that upon the death or incapacity of the first of them the trust becomes irrevocable, and its terms – including designation of the final beneficiaries— are fixed contractually.[x] 

            In order to fully protect the client’s trust concerning the irrevocability issue, it is advisable that the trust instrument denote the final beneficiaries (that is, the children of the marriage who might otherwise be lumped in the “by descent” grouping and constituting only the remainder interest), and also that it provide those beneficiaries a small annual income in order to establish in them a present interest by purchase. This drafting suggestion is in response to Section 175.41 of the Oklahoma Trust Act[xi] which requires all holders of an interest by purchase to agree to revocation of a self-styled “irrevocable trust.”

            It is the “by purchase” proviso that is the source of potential trouble, because this means that if children only have a contingent interest in the remainder, they take such interests by descent, and the surviving spouse would be the only interest holder whose consent is necessary to invoke the formerly “joint” decision to revoke (or amend) the trust. Fortunately, Black’s Law Dictionary provides us with a definition of an interest “by purchase” as an “acquisition . . . by any means whatever except by descent,” which definition has been recognized by Oklahoma in Oklahoma City v. Board of Education of Oklahoma City, 1938 OK 1, 75 P.2d 201, citing Kohl v. United States, 91 U.S. 367, (1875) 23 L. Ed. 449. In this suggested iteration of the proposed subject trust, the children would not take their present annual income interest as an inheritable interest or by descent, but as current, named beneficiaries – that is, by purchase rather than by descent. Thus, the trust, which by its terms becomes irrevocable upon the death or incapacity of the first Trustor, cannot be transformed back into a revocable status except upon agreement of the surviving spouse and all named children, according to the requisite terms of the governing statute.[xii]

            There are other challenges to be overcome, including issues concerning the enforceability of a “joint and mutual” instrument when one party seeks a change to its terms by claiming a forced share under the forced heir provisions of intestate succession. (84 O.S. §44.)  Do the trust’s terms prevail over spousal elections? Case law shows us that the viability of a “mutual” or contractual will in this respect depends largely on whether it shows sufficient indicia of contractual intent. It would seem that the same considerations discussed in the analysis of mutual wills should come into play in construing mutual or family trusts, and there is some case law indicating that the same approach does indeed apply to trusts. See Whiting, Robison, and Bartlett, supra.

            Issues of surviving spousal powers or of reconciling trust provisions with the spousal election pale when measured against the fallout that arises when trust provisions collide with the laws governing property division upon the dissolution of the marital union. Do the distributive trust provisions (and for that matter, the status of the property held by the trust) remain – or does the divorce tear them asunder with the marriage? An antenuptial agreement can be helpful in such a situation. In Dean v. Jelsma, 1957 OK 163, 316 P.2d 599, the Supreme Court determined that a prenuptial agreement which bestowed third party beneficiary rights on a child of a former marriage could not be abrogated by a subsequent non-conforming will. It is unclear whether this same rationale would apply to a trust centered estate plan followed by marital dissolution.

            Absent a successful prenup, division of the marital estate and status of the family trust go before the divorce court. There, the various applicable statutes (43 O.S. §§ 204, 205) appear to be quite straightforward, especially in light of the statutory admonition of 43 O.S. §121 (B), to “make such division between the parties as may appear just and reasonable.”  This division is to apply to the marital estate – something that is sometimes referred to as that estate which is “acquired by joint industry during coverture”.  Courts have struggled to define exactly what is meant by the phrase “acquired by joint industry during coverture.” If a spouse gifts the other spouse property previously owned by the gifting spouse prior to marriage, is that property transmutated into property acquired by joint industry during coverture?  Does acquisition of property by gift from one spouse to the other then become the separate property of the receiving spouse – or is it property acquired by joint industry?  Complications occur in probate proceedings when a spouse dies having transferred his or her separately acquired property to the other spouse in joint tenancy, raising a presumption of an intramarital gift of the asset into the marital estate. Shackelton v. Sharrard, op cit. Thus there has arisen from probate the “presumption of a gift” doctrine, which can only be rebutted by clear and convincing evidence.  See Smith v. Villareal, 2012 OK 114,  298 P. 3d. 533 and Jackson v. Jackson, 1999 OK 99, 995 P.2d. 1105.

            With that as the probate background, in divorce actions the interplay of marital estate and contrary contractual trust provisions has a winding and convoluted history. In a case involving the transfer of the husband’s house and other properties into joint tenancy with the  subsequent conveyance of an undivided one-half of said properties into wife’s separate trust, it was held that the properties became marital when the joint tenancy transfers were made.  The case was remanded for a determination whether the properties became separate property upon the conveyances of one-half interests into the trust. Bartlett v. Bartlett, op cit.

            In the case of Courts v. Aldridge, 1941 OK 405, 120 P.2d 362, where a husband deeded farming property to his daughter, but during his lifetime kept complete control of it and acted as if he still owned it, the transfer was deemed to create a resulting trust.  A married man cannot make gifts of jointly acquired property during his lifetime without the consent or knowledge of his wife where the transfer is in fraud of the wife’s marital rights.

            In a non-divorce proceeding, wife’s allegation that her husband’s various gifts to other defendants during the marriage (in a sum exceeding eight million dollars) stated a claim for relief.  Sanditen v. Sanditen, 1972 OK 39, 496 P.2d 365. Sanditen changed a fifty year reign of York v. Trigg, 1922 OK 257, 209 P. 417, wherein the Court determined that a husband was not restricted from transferring non-homestead property to a trust inter vivos in the absence of a statute proscribing same. Twelve years after Sanditen, Thomas v. Bank of Oklahoma, 1984 OK 41, 684 P.2d 553, expanded the spousal election such that it controlled over opposing trust provisions. (As a sidebar: reading these three cases in chronological succession provides a brief survey of evolving twentieth century attitudes about the role and rights of married women.) Thereafter, the cases depend on the attitudes and analyses of the reviewing courts on a case-by-case basis. One thing certainly that can be gleaned from these cases is that the contractual arrangements and apparent intentions of the parties hold significant sway in determining the rulings that result.            

             A specific provision of law provides for automatic revocation of a trust in the event of subsequent divorce (60 O.S. § 175.) This statute and the indefiniteness and complexity of property division within a divorce case could spell disaster for the family trust, but there is a way to avoid this result by careful drafting of the original trust provisions. This course would be to clearly spell out what the parties intend to be applied to their trust– contractually, and to spell out, initially, with clarity and specificity exactly what status and condition the parties intend to be applicable to their trust and to be specific about the status of property transferred to it, so that the contractual terms of interim and ultimate disposition of their estate leave little room to litigate the issues. When such clear and definite provisions are employed, there is a safe harbor that exists within the statute at subsection (B)(5) thereof, which excludes the application of the automatic revocation in cases where, and to the extent that, “the trust contains a provision expressing an intention contrary to [automatic revocation]. . .”  If your clients are aware of the possible havoc a future divorce could inflict upon the administration and distribution of their trust and estate plan intentions, they may wish to bind themselves in the future to a distribution plan presently delineated, and in such event the trust instrument should specifically bar application of the automatic revocation rules in Section 175(A).

            Having addressed instances of post-funding divorces, we should look at how the “rights” of other heirs may come into conflict with trust terms as set out by its Settlors. Most of us have probably been guilty of applying “forced heir” nomenclature to cases of pretermitted heirs in probate matters involving such situations. But as our courts have pointed out, “Oklahoma’s pretermitted heir statute. . . is not a limitation on a testator’s power to dispose of his or her property. . . [but] is an assurance that a child is not unintentionally omitted from a will.” In Re Estate of James, 2020 OK 7, ___P.3d ___, at ¶17.  James also distinguishes pretermitted rights as to wills from other vehicles whereby a beneficiary receives her “bequest,” such as insurance policies, certain bank accounts, and trusts.  As to all these others, this case clearly indicates no pretermitted heir savings clause applies to trusts. There is an interesting proposition to be found in James, that bears on the differing applications of trust provisions from will provisions: “Disposing of property is an inalienable natural right throughout a person’s lifetime. However, the method of disposition of property after death and the right of inheritance are statutory.” The clear result of this language is that the drafter of a trust-centered estate plan should reflect her clients’ wishes as to all heirs, and as a precautionary measure make suitable mention (in the words of the statute) of “any omitted children or for the issue of any deceased child.”  Because of the clear language of the statute (note the limiting language of “given by the will”), our courts have explicitly and consistently denied claims of alleged pretermitted heirs as not applicable to a trust-centered distributive scheme found where the benefit – if any – is not derived through testamentary “oversight.” See Estate of Jackson, 2008 OK 83, 194 P.3d 1269 and Welch v. Crow, 2009 OK 20, 206 P.3d 599.

            The best practice would be to ascertain all possible statutory or other (i.e., “contractual”) claimants and then specifically mention them in the trust along with any specific distributions or lack thereof. This would successfully cut off such pretermitted or other expectancy or contractual claims to a distributive share. Remember the earlier example of Mrs. Smith’s written promise of the million dollar graduation gift to Mary Jane? That’s a prime example of “all possible contractual claimants” and that’s why “contractual” is included among those matters whose existence and status require clear ascertainment prior to drafting the trust. Statements should be included in the trust indenture that either (a) no promises were ever made and no expectancies ever created thereby or (b) specifically renouncing any known claims. Alternatively, if and in the event the promise(s) was made, your client should be instructed to revisit the matter with the future beneficiary in order to reach the best possible disentanglement now rather than costly litigation in futuro. 

            An issue in some ways similar to the pretermitted heir situation is the matter of lapse by death of the beneficiary prior to death of the Settlor(s) or termination of the trust. The case of O'Donoghue v. Dooley, 2016 OK 110, 383 P.3d 773, ruled for distribution of a deceased’s beneficiary’s share to that beneficiary’s children, although it seems that the direct application of 60 O.S. §175.56 would have answered the question presented therein without need for further analysis, said section providing an equivalent anti-lapse statute within a trust-centered context.

            Finally, concerning contested matters of trust distribution after the Settlor(s) death, inclusion of a no-contest provision will go a long way in the abatement of later fights over trust construction and/or distribution of its assets. In terroram clauses are useful devices which likely may already be somewhat familiar to your client and should be discussed concerning the possible inclusion of such clauses in the trust instrument and accompanying pour-over will. They are generally enforceable in most jurisdictions and have specifically been recognized as valid by Oklahoma courts. Generally, see Newman, op cit, Section VI(F) and specifically as to Oklahoma law, see In Re: Wallace Revocable Trust, 2009 OK 34, 219 P.3d 536, following the ruling in Matter of Estate of Westfahl, 1983 OK 119, 674 P.2d 21, that such “no contest” clauses are not only acceptable in wills and trusts, but “are favored by public policy.”  Note, though, that Westfahl put forward the rule that “a forfeiture clause should not be invoked if the contestant has probable cause to challenge a will based on forgery or subsequent revocation. . .” Presumably this same caveat applies to trusts, as discussed in Wallace, and this should be especially so considering the specific statutory sections that reference construction and interpretation of trust provisions (60 O.S. §175.23) and concerning matters addressing breach of trust or removal of a trustee (60 O.S. §§175.57 and 175.39).

            Ademptions and resulting trust concepts involve situations, respectively, where the object of a bequest no longer exists (or has been previously transferred to the beneficiary by other means), and where the trust appears to have no end game.            The law of ademption deals with property that once was – but is no longer – part of the estate; the same conceptual framework would apply to trust circumstances, and the instrument should be drafted accordingly to obviate such circumstances. What about providing for after-acquired or overlooked property, that is, property that is not included initially? Probate law provides for such situations (at  84 O.S. §146); trust law does not.  At this point the circle has brought us back to the beginning of this article: every trust-centered estate plan must include (in a mandatory and not elective sense) as part and parcel thereof, a pour-over will.  “[A] pour-over will was an essential part of any trust-centered estate plan, as a prophylactic rather than a driving force . . .” This is nowhere more evident and exceedingly useful than in cases of properties that were omitted – for whatever reason, from initial inclusion into the trust. The pour-over will fills in this gap, providing a conduit by which after-acquired or after-discovered property can be channeled for distribution – under the terms and in the manner which your client wanted. It can direct distribution of such property to the intended ultimate beneficiary(ies) of the now-defunct trust by means of a clause that provides for distribution upon terms identical to those of the former trust, as same existed at the time of death of the Settlor.  Finally, when the trust by its own terms has no ultimate beneficiaries, the law provides for a resulting trust. The case law is a bit confusing, but by inserting language to assure that there is never a dearth of beneficial interests and referencing distribution of trust proceeds to a pour-over will (with the two instruments having essentially mirrored provisions) there is no need to rely on the potential result of curative statutes that may – or may not – achieve the final result envisioned by Mrs. Smith.

            All of the vignettes outlined above present potential scenarios that could affect the quality of your client’s lifetime relationship to her trust – as well as her beneficiaries’ experience in concluding it. Some of these scenarios are likelier than others, some would happen only against almost all the odds. Still, in conclusion bear in mind that no matter how well you investigate, no matter how well you do your due diligence, no matter how well you draft the instrument(s) . . . the possibility of trouble remains.  Unfortunately, this is true in a trust-free estate plan as well. The general practitioner can take some solace (and have more protection against a malpractice claim) by doing her best to make sure there’s not a ticking bomb just waiting to go off later. Due diligence and thoughtful trust preparation may uncover a problem that can be corrected concerning that ill-considered earlier deed of Blackacre into joint tenancy. You avoided an unpleasant surprise which would be a disservice to the client and would fail to meet the hopes and expectations of the intended and disappointed beneficiary(ies). Instead, when the trust is executed and all attendant documents are in place – because you took the time to become thoroughly acquainted with your client’s factual, situational history as well as her dispositive wishes, and to fully prepare for every reasonably foreseeable circumstance, you will have rendered Mrs. Smith the best service possible, and you will have earned your fee.  Though your client’s situation will always be fluid, you nevertheless will have done your best to plan for the foreseeable contingencies and to see that your client’s distributive wishes are carried out faithfully.

 

 

 

 

 

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[i]   See generally, Newman, Alan, “Revocable Trusts and the Law of Wills: An Imperfect Fit” (2008). Akron Law Publications. 169. http://ideaexchange.uakron.edu/ua-law-publications/169

 

[ii]  As of 2020, this was the threshold amount above which a requirement for filing operates. This amount will increase to $11,700,000.00 with the advent of 2021. The amount includes the total of the taxable valuation of the deceased’s estate and prior taxable gifts. See IRS website and related statutes and regs for details.

 

[iii]  “Living trust” is the term commonly and widely applied to revocable trusts wherein the Settlor retains complete control while living and compos mentis. They also provide for the disposition of the settlor’s estate upon death, but can also provide for the Settlor’s personal use of her largesse during her life, her maintenance without court oversight in the event of her subsequent incapacity or incompetence, and can also usually offer the benefit of privacy to the Settlor and her family with respect to dispositive plans for  her assets. Clients invariably find that one they get their trust set up and functioning, their circumstances feels no different than pre-trust. However, by electing a trust-centered estate plan, they have (hopefully) eliminated the need to ever use or be subject to a guardianship or conservatorship, invoking provisions of a Power of Attorney, and eventual court supervision of their estate during the probate process. You should include a durable POA, nomination of guardian and pour-over will in every estate plan, but, with due diligence and careful drafting – and the client’s careful attention to a few practical details – these documents may very well never be utilized. Other useful benefits of a trust-centered plan include the ability to plan for interactions with Medicaid, for a special needs trust, and other specialized purposes that are not covered in this article.  A trust requires a settlor, object, beneficiary, and any necessary operating and ending instructions; there are any number of basic forms to be found as drafting aids This article does not deal with the routine structural details of, as they are widely available to the general practitioner. Rather, attention is paid to additional, particular aspects and considerations that may impact certain drafting decisions concerning your client’s trust-centered estate plan, other than the aforementioned tax-planning possibilities. Also, this article does not venture into the many management tools and efficiency arrangements which a trust can offer while the Settlor still lives. 

 

[iv]   Needless to say, of course, there is always an essential part of the trust-centered estate plan that is a will – the too often underused “pour-over” variety. A pour-over will, discussed infra, acts as a very useful guard against possible subsequent trouble from omissions to the trust or after-acquired property, but the will is a prophylactic rather than a driving force for the estate plan.

 

[v]    [a revocable trust is] “. . . an ambulatory instrument that speaks at death to determine the disposition of the settlor’s property.” Matter of Estate of Tisdale, 855 N.Y.S.2d 809 (Sur. Ct. 1997).

 

[vi]   See generally, Newman, op cit.

 

[vii]   Shackelton v. Sherrard, 1963 OK 193, 385P.2d 898: A joint tenancy terminates upon “any act which is inconsistent with its continued existence.” A deed by one joint tenant to a third party severs the joint tenancy and creates a tenancy in common. The “four unities” required to establish and maintain a joint tenancy are still alive and well in Oklahoma. See Valdez v. Occupants of 3908 SW 24th Street, Oklahoma City, 2011 OK 99, 270 P.3d 143.

 

[viii]   The statute does not specifically mention trust distribution, and the closest it comes is the statement that reads “No person. . . shall. . . receive any interest in the estate of the victim. . .”  However, it could well be argued that a trust distribution is not from the estate of the deceased, but from a separate and distinct entity previously created by the deceased. The reader is directed to an excellent article by Judge Gregory C. Blackwell, “Property: Creating a Slayer Statute Oklahomans Can Live With,” 57 Okla. L. Rev. ____, wherein the deficiencies of the current statute are thoroughly discussed. The article suggest we should shift our language to “expectancies,” and says in part: “There are some rights that are expectancies upon which everyone can agree.  Rights gained under a will, through intestacy, and by contract all traditionally fall into this category.  Some rights are more difficult to categorize, such as the right of survivorship in jointly owned personalty, powers of appointment, irrevocable trusts, other will substitutes, vested remaindermen, and cases where “a donor names the slayer as a default taker, subject to a power exercisable by the victim. . . These are all examples of problem areas that a slayer statute should specifically address.” (Footnotes omitted.)  

 

[ix]    The reader will no doubt notice the several references to and discussion about probate cases in the following discussion. Trust and wills are both methods whereby a person can accomplish, inter alia, a directive for passing her estate to others upon her demise. Wills and related probate (wills and intestate succession) have a much longer and more varied history; it is often upon these cases that current conflicts are decided, and it is often useful to attempt to analogize from probate to trust law. The effort is commendable – and probably the best path through unexplored territory – but results are not always the same. “. . . [T]he trend in both statutory and case law is to subject trusts, and persons interested in them, to the same law that would apply if the settlor had instead used a will to provide for the disposition of her property at her death.  . . . while there are many revocable trust issues that are being, and should be, resolved by reference to the law of wills, there are many others for which that is not the case.”  Newman, op cit.

 

[x]     Cases discussing the enforceability of contracts in mutual will cases include Matter of Estate of Whiting, 1990 OK CIV APP 6, 789 P.2d 255, and Robison v. Graham, 1990 OK 93, 799 P.2d 610. Application of similar reasoning to uphold contractual trust provisions can be found at Bartlett v Bartlett, 2006 OK CIV APP 112, 144 P.3d 173.

 

[xi]    The Act is found at 60 O.S. §§175.1 et seq; §175.41 reads: “Every trust shall be revocable by the trustor, unless expressly made irrevocable by the terms of the instrument creating the same.  Provided, that any trust may be revoked by the trustor upon the written consent of all living persons having a vested or contingent interest therein.  The term ‘contingent interest,’ as used in this section, shall include an interest which a beneficiary may take by purchase, and exclude any interest which a beneficiary may take by descent.  Provided further that this section shall not apply to a spendthrift trust unless same is created by the trustor for his own benefit.”

 

[xii]    Also see Harrison v. Johnson, 1956 OK 2012, 312 P.2d 951, and In re Living Trust of Reid, 2002 OK CIV APP 49, 46 P.3d 188.