Younger v. Younger, No. 07-19-00039-CV, 2020 WL 6253237 (Tex. App.—Amarillo Oct. 22, 2020, no pet. h.).


Construction and Interpretation


Husband and Wife established a revocable trust which excluded one of their three children. After Husband died, Wife amended the trust to disinherit another child. This child sued claiming that Wife’s amendment was contrary to the terms of the trust or, at least, that the trust’s terms were ambiguous. The trial court held that the trust was unambiguous, becoming irrevocable upon Husband’s death, and thus awarded the child a share of the trust property.

The appellate court first agreed with the trial court that the trust amendment was ineffective although the trust authorized the surviving settlor to amend the trust “by restating [the provisions] in full.” While alive, amendments had to made jointly except as to each person’s separate property. The trust also provided that the terms of the trust regarding administration and distribution became irrevocable upon the death of the first settlor.

However, the appellate court disagreed with how the trust terms applied to a specific parcel of property. Under one provision, the trustee appears to have the power to distribute Husband’s property to Wife notwithstanding the child’s remainder interest. However, this conflicts with another provision which appears to make the distribution of property irrevocable upon Husband’s death. Thus, this ambiguity requires a trier of fact to resolve the issue.

Moral:  Trusts created by co-settlors should clearly state what powers the surviving settlor has to amend the terms of the trust.