Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281 (Tex. App.—Amarillo 2005, pet. denied).


A dispute arose as to whether certain gifts in Testator’s will were (1) outright gifts of life estates or (2) gifts in trust of life interests. The court examined the face of the will and found that the words Testator used were unambiguous and not susceptible to more than one construction. Thus, extrinsic evidence was not admissible under San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 641 (Tex. 2000), to vary the plain meaning of Testator’s language. Testator clearly explained that the gifts were for the beneficiaries’ “lifetime” and then later in the will referred to the gifts as granting “a life estate.” In addition, Testator created trusts in the same will by using trust language and naming trustees.

Note: Because the court determined that no trusts were created by this language, the plaintiff’s request for attorney fees from an alleged trustee for breach of fiduciary duty under Property Code § 114.061 failed.

Moral: Even if a testator clearly nominates a gift as granting a life estate, the argument may still be made that the gift is actually one in trust.