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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).