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.