Gordon v. Gordon, No. 11-14-00086-CV, 2016 WL 1274076 (Tex. App.—Eastland Mar. 31, 2016, pet. denied).
Husband and Wife created a revocable trust which
required a revocation to be in a signed acknowledged writing delivered
to the trustee. Thereafter, they executed a joint will which provided
that the will overrides “any prior allocations described in trust
documents.” After Husband’s death, a dispute arose as to whether the
property they had transferred to the trust would be governed by the
terms of the trust or the will. Wife claimed that the trust controlled
and Executor of Husband’s will contended that the will controlled. The
trial court held that the will provision did not act to revoke the trust
and thus the trust assets pass under the terms of the trust. Executor
appealed.
The appellate court affirmed. The court explained
that the language of the will addressing the disposition of property was
testamentary in nature, that is, it would take effect after death even
though the language of the will revoking previous wills was effective
immediately. The will did not contain a provision revoking the trust
which complied with the requirements for revocation set forth in the
trust.
Moral: An inter vivos trust is a
non-probate asset and the property transferred to the trust is governed
by the terms of the trust, not a subsequent will unless the will can
serve as a presently effective trust revocation following the terms of
the trust.