2016 Ohio 5788
Ohio Ct. App.2016Background
- Dominick and Colleen Rex created a joint revocable inter vivos trust in 1997 and transferred only real property (219 Sycamore Dr.) into the trust.
- The Trust reserved to the Settlors the right to revoke, modify, amend, or terminate the trust during their lifetimes, exercisable jointly while both were alive and individually by the survivor after one Settlor’s death.
- Dominick died in 2013. The Trust had been amended twice (2005 amendment modifying dispositions); in May 2014 Colleen executed a Third Amendment revoking prior amendments and providing that upon the death of either settlor the surviving settlor would receive all remaining trust assets and the trust would terminate.
- Colleen recorded an affidavit of successor trustee and transferred the Sycamore property by survivorship deed in May 2014.
- Thomas (son) sued in probate court seeking a declaration that he was a beneficiary and that Colleen lacked authority to terminate the trust; Colleen moved for summary judgment.
- Probate court granted Colleen summary judgment and later awarded her $8,939.08 in attorney fees under R.C. §5810.04; Thomas appealed both rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. §5806.02(B)(2) controls revocation after one settlor dies | Thomas: statute limits a surviving settlor’s power to revoke/amend only as to that settlor’s contributed property | Colleen: Trust terms govern; Trust unambiguously lets survivor act individually after death of the other | Court: §5806.02 does not apply retroactively to this trust and Trust terms control; survivor could terminate the trust |
| Whether summary judgment was appropriate | Thomas: factual/legal disputes exist about beneficiary rights and validity of Colleen’s actions | Colleen: No genuine issue; Trust language and evidence show Colleen lawfully terminated trust and disposed of property | Court: Summary judgment for Colleen affirmed; Trust unambiguous and entitles survivor to revoke |
| Whether attorney fees may be charged against a party or the trust under R.C. §5810.04 | Thomas: He was found to have no interest in the trust, so cannot be ordered to pay from a trust interest | Colleen: Statute authorizes courts to award fees to a party to be paid from the trust or a party’s interest | Court: Award upheld; probate court did not abuse discretion in awarding fees under §5810.04 |
| Whether trust amendments executed before 2007 are governed by post-2007 statutory scheme | Thomas: Relies on later statute to limit revocation authority | Colleen: Trust executed and amended pre-2007; express trust terms prevail | Court: Pre-2007 trust and amendments not governed by §5806.02; trust terms prevail |
Key Cases Cited
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (Ohio 1987) (standard of appellate review for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (party moving for summary judgment must point to evidentiary materials showing absence of genuine issue)
- Vahila v. Hall, 77 Ohio St.3d 421 (Ohio 1997) (burden-shifting framework for summary judgment motions)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard)
- Wilborn v. Bank One Corp., 121 Ohio St.3d 546 (Ohio 2009) (American Rule and circumstances when attorney fees may be awarded)