Trust Amendments
In In re Thomas L. Harris Trust (Mo.Ct. App. 2006), the wife of the deceased argued that her consent to an amendment to a trust was needed only where her benefits under the instrument were being taken away, not where they were increased. The trust instrument said:
said Trust, and any amendments thereto shall provide that [Wife] take, upon said death of [Decedent], if she survives him, a one fifth (1/5) share of said Trust, and such provision may not be revoked or amended, without the consent, in writing of [Wife], unless a decree of dissolution or legal separation was entered.
The first two amendments were signed as “accepted and approved” by the wife. The first allowed her to live in their home for the rest of her life or until she remarried. The second appointed UMB Bank, N.A., as a successor trustee. The third amendment to the trust amended paragraphs 2 and 3 of Article III to say:
2. All of the rest, residue and remainder of the trust estate shall be distributed to [Wife], per stirpes.
3. In the event any distributee under this Amendment or any prior Amendment to the trust or the trust itself shall contest or otherwise dispute the validity of the trust or any provisions thereof; then in the event such contest is successful, in lieu of all distributions that said individual would receive hereunder or thereunder, [Decedent] states that it is his desire that such individual shall receive the sum of Ten and No/100 ($10.00) Dollars.
3. In the event any distributee under this Amendment or any prior Amendment to the trust or the trust itself shall contest or otherwise dispute the validity of the trust or any provisions thereof; then in the event such contest is successful, in lieu of all distributions that said individual would receive hereunder or thereunder, [Decedent] states that it is his desire that such individual shall receive the sum of Ten and No/100 ($10.00) Dollars.
The court said that the trust should be distributed under the terms of the trust as they were under the second amended version, rather than the third.
Decedent included a provision in the Trust which required Wife’s consent to any revocations or amendments affecting her distribution under the terms of the Trust. Wife specifically consented to the two, prior amendments to the Trust–one of which directly increased her benefits by allowing her to remain in the marital home; and the other which named a successor trustee. The Third Amendment specifically revoked a provision relating to her distribution and amended the Trust so as to affect the distribution of property to Wife. Wife’s consent was required to validate the Third Amendment made by Decedent. * * * By implication, Wife’s consent also had to have been executed prior to the termination of the Trust because Decedent set out that the Trust would terminate upon his death. * * *