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Five Decades After Will Was Written Court Modifies Terms

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When Nathan Sanders died in 1955, his will created a “perpetual” trust for the benefit of three hospitals in Dayton, Ohio. The trust was to be managed by a bank (ultimately Bank One Trust Co.), and the income paid out annually. Forty percent of the income was to go to Good Samaritan Hospital and thirty percent each to Miami Valley Hospital and St. Elizabeth Medical Center. Forty five years later, St. Elizabeth closed its doors.

The Franciscan Sisters of the Poor, a Catholic order which sponsored St. Elizabeth, announced in mid-2000 that, faced with more than $20 million in losses over the previous two years, it was going out of the hospital business. A year later the Sisters notified the trustee of Mr. Sanders’ trust that they no longer expected to receive any portion of the income from the trust.

At the time the trust had originally been established Mr. Sanders had intended that the money would be used in perpetuity to maintain the Harriet and Nathan Sanders Memorial Fund at each of the three hospitals. With one of the hospitals closing its doors, the question facing the trustee was how to distribute St. Elizabeth’s share of the income.

Mr. Sanders’ nephew, great-nieces and great-nephews argued that his bequest had lapsed, since there was no one to receive its benefit any longer, and that St. Elizabeth’s share of the trust should be distributed as if he had made no provision for it in his will—in other words, to them. The other two hospitals named in the will (backed up by Ohio’s Attorney General) argued that the trust should henceforth distribute its income to them. The Ohio probate court agreed with the hospitals, and split St. Elizabeth’s future income share equally between Good Samaritan and Miami Valley Hospitals.

The Ohio Court of Appeals upheld the probate court, applying the trust doctrine of “deviation.” Under that doctrine a trust’s terms can be revised when circumstances change so that the original intent of the person establishing the trust can no longer be met. The probate court’s income split, ruled the appellate court, was a good resolution of a problem not anticipated by Mr. Sanders when he originally wrote his will. Bank One Trust Co. v. Miami Valley Hospital, August 29, 2003.

Arizona courts would probably reach a similar conclusion. In fact, in an Arizona case decided in 1993, a 1930 will left money for construction of a tuberculosis sanatorium. Since times had changed radically in the intervening decades, the Arizona Court of Appeals authorized distribution of the remaining trust balance for care of tuberculosis patients in the existing hospital facility.

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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.

Famous people's wills

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.