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Surviving Spouse Revokes Trust–Children Disinherited

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Herschel West and his wife Hazel lived in Provo, Utah. Their estate plan was straightforward–they established a living trust and transferred their home into the trust’s name. The trust provided that Mr. and Mrs. West could live in and use the home as long as either of them lived, and that their children would receive the home on the second death. Both Mr. and Mrs. West were named as trustees, and the survivor was named as sole trustee after the death of either one of them.

Hazel West died in 1988. Herschel West remarried a year and a half later. A little more than a year after the second marriage, Herschel West signed a deed transferring the home from the trust into his and his second wife’s names. Within a year of the deed, Herschel West died.

After Mr. West’s death, his second wife Marilyn initiated a probate proceeding in the Utah court. She did not list the home as part of the probate estate, since she and Mr. West had held it as joint tenants. The three children of Herschel and Hazel West filed suit, insisting that the home should be theirs because of the trust. According to the children, Mr. West as trustee owed a duty to them as ultimate beneficiaries of the trust, and therefore could not deed the home out to himself and his new wife.

Mr. West’s children pointed to language of the trust which seemed to require both Herschel and Hazel West to act in order to revoke the trust. Once Hazel West had died, they argued, the trust became irrevocable and Mr. West did not have the authority to remove the home from the trust.

Mr. West’s second wife argued that the power to revoke the trust belonged to Herschel and Hazel West together, but that upon the death of Hazel, Mr. West had the inherent power to revoke the trust by himself. In addition, she pointed to language of the trust that permitted the trustee to sell or dispose of individual trust assets. That, she said, caused the trust to be revoked when Mr. West signed a deed transferring the home out of the trust.

Utah’s Supreme Court ultimately had to decide the question. The Court considered the language of the trust, including its declaration that the property of the trust was held for the benefit of Herschel and Hazel’s three adult children. Nonetheless, the Court ruled, the primary beneficiaries were Herschel and Hazel West themselves. Since their children were not to receive any property until the death of both Herschel and Hazel West, they were not yet beneficiaries of the trust at the time the deed was signed.

Since Herschel was the sole beneficiary at the time he signed the deed, he had no duty to protect his children’s possible interest in the home. Since the trust provided that it was automatically revoked as to property taken out of the trust’s name, the children had no right to object to the transfer of the home into joint tenancy with Marilyn West. In other words, they could not make any claim to the house after their father’s death. Estate of West, Utah Supreme Ct., Nov. 28, 1997.

It is reasonable to assume that Herschel and Hazel West did not mean to prevent the transfer of the home to a new spouse after the death of one of them. Occasionally, however, married couples do want to guarantee that property will go to children even if the surviving spouse should remarry. Could the Wests have prevented the transfer to Marilyn Ball if they had wanted?

Easily, as it turns out. The trust could have provided that it could not be amended after the first death, and that no assets could be transferred without the approval of the children or other persons. If the Wests intended to protect the home from second spouses, they failed to include the provisions necessary to accomplish the desired result. If that was their intention, poor draftsmanship cost the children the family home.

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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.