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Father’s Promise To Establish Trust Enforceable After Death

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Jack and Frankie Bemis were divorced in Nevada in 1972. At the time, Jack was expecting a distribution from a California trust within the year. As part of the divorce settlement, he agreed (and was ordered) to set up a $25,000 trust for the benefit of the couple’s two children with part of the proceeds. The children, Kevin and Scott, were then 13 and 12, respectively; the trust was supposed to be distributed to the boys when Kevin reached age 25.

In an effort to encourage a good father-son relationship, Frankie never mentioned the terms of the divorce settlement to her sons. Jack provided no financial assistance to his sons, and did not set up the trust as he had promised. When Kevin turned 25, in 1984, no funds were distributed to either son.

When Jack died in 1995, his estate plan left nothing to Kevin or Scott. Nearly a quarter of a century after his promise to set up a trust for his sons, they first learned (from their mother) of the agreement and their father’s failure to comply with its terms.

Shortly after Jack’s death, Kevin and Scott filed a claim against his estate. They argued that they should be paid the original $25,000 plus the interest that would have accrued if the trust had been established.

Jack’s estate objected to payment of the claim, and the question was referred to the Nevada probate court. After reviewing the claim, that court determined that Kevin and Scott were years too late; the statute of limitations barred them from asserting the claim at this late date.

The Nevada statute of limitations requires that any claim based on a contract (as Kevin and Scott’s was) must be brought within six years of the breach. Whether the date of breach was 1973 (when the trust was supposed to be set up) or 1984 (when the trust was supposed to be distributed to Kevin and Scott), the probate court ruled that it had long expired when Jack died in 1995.

Kevin and Scott appealed. The Nevada Supreme Court reversed the probate court on the statute of limitations issue. Noting that Kevin and Scott claimed to be unaware of the agreement to establish a trust until after their father’s death, the justices ruled that the statute of limitations would not begin to run until they knew (or should have known) of their father’s breach of contract.

Since Kevin and Scott were still minors when Jack first violated the terms of the contract, the statute of limitations would not have applied to them at that point in any event. They should not be expected, said the court, to have looked up their parents’ divorce decree once they turned eighteen; unless someone told them of the trust promise, there was no other way for them to have learned of Jack’s violation of the decree. To the probate court’s assertion that they should have gone to the courthouse to review their parent’s divorce decree, the Supreme Court responded that “we can think of no policy to be served by imposing such an obligation on the children of divorce.”

The Supreme Court ruling is not the end of the lawsuit for Kevin and Scott. The court’s order simply refers the matter back to the probate court; Kevin and Scott must now show that their failure to learn about the divorce decree was reasonable. If they can show that there was no reason they should have known of the trust promise, they will have laid the groundwork for imposition of a “constructive trust” against their father’s assets. They would then be entitled to the original $25,000 plus interest from 1973. Bemis v. Estate of Bemis, November 25, 1998.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.