Linda K. Friedman Phd v. Pnc Bank, N.A. in Its Capacity as Trustee U/A of the Rose Friedman 2004
This text of Linda K. Friedman Phd v. Pnc Bank, N.A. in Its Capacity as Trustee U/A of the Rose Friedman 2004 (Linda K. Friedman Phd v. Pnc Bank, N.A. in Its Capacity as Trustee U/A of the Rose Friedman 2004) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-0390-MR
LINDA K. FRIEDMAN, PhD; RHONDA L. FRIEDMAN; AND JILL A. FRIEDMAN APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE ACTION NO. 18-CI-004703
PNC BANK, N.A., IN ITS CAPACITY AS TRUSTEE U/A OF THE ROSE FRIEDMAN 2004 GRANTOR ANNUITY TRUST DATED DECEMBER 7, 2004; WAYNE FRIEDMAN, INDIVIDUALLY AND AS CO-TRUSTEE OF THE MARVIN FRIEDMAN REVOCABLE TRUST; AND ROSE FRIEDMAN, ONLY AS CO-TRUSTEE OF THE MARVIN FRIEDMAN REVOCABLE TRUST APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES. ACREE, JUDGE: Appellants appeal the Jefferson Circuit Court’s February 6,
2019 Opinion and Order dismissing their action for failure to state a claim.
Finding no error, we affirm.
BACKGROUND
This matter arises from the distribution of Marvin Friedman’s estate.
His three daughters, Linda, Rhonda, and Jill Friedman (Appellants) filed an action
against: (1) their brother, Wayne Friedman; (2) Marvin’s wife, Rose Friedman;
and (3) the trustee, PNC Bank, (collectively, Appellees) seeking a declaration of
rights to certain assets under a grantor retained annuity trust agreement (GRAT)
for the benefit of Marvin. Marvin’s estate was complex due to multiple codicils
and trusts, making the facts of this case convoluted. We lay out those facts below.
Marvin executed a trust agreement called Marvin’s Revocable Trust
Agreement and his last will and testament on December 2, 2004. In this will,
Marvin failed to include a power of appointment regarding the trust agreement.
However, the trust agreement contained a clause that gave a testamentary special
power of appointment to Marvin, so he could determine the distribution between
Rose and his children. A few days later, on December 7, Rose funded a GRAT
that would benefit her for two years and then be transferred to the trust agreement.
Two years later, Marvin executed his first codicil. In this codicil, he
made additions and deletions to his will. Section 2.3 was added to the will, giving
-2- him a special testamentary power of appointment over the GRAT and directing all
assets to be added to the trust agreement.
The second codicil was executed on March 18, 2010. In it, Marvin
deleted Section 2.2 of his will, which discussed the distribution of his personal
property, and substituted language to include a provision that would come into play
should Rose predecease him.
On December 21, 2012, Marvin executed a third codicil, which is at
the heart of this dispute. In this codicil, Marvin added a new Section 2.3 which has
language completely different from the original Section 2.3 added in the first
codicil pertaining to his power of appointment. This new Section 2.3 discussed
Marvin’s wishes concerning a burial plot and made no reference to his power of
appointment.
Marvin died on October 13, 2016. At that point, Appellants believed
the third codicil revoked the previous Section 2.3 and replaced it with the language
regarding his burial wishes. Therefore, Appellants argued the power of
appointment was revoked and the trust should be immediately distributed among
Appellants and Rose. Appellees argue to the contrary. They believe the burial plot
was an addition to Section 2.3 and did not revoke the power of appointment.
Resolution of this dispute decides if the funds are distributed pursuant to the
GRAT, which would be immediately disbursed among the children, or pursuant to
-3- the trust agreement, which would be distributed in 2032 to Marvin’s great-
grandchildren.
The circuit court ultimately decided that Marvin did not intend to
eradicate his power of appointment by including burial instructions. It found the
third codicil contained no revocation clause and was not inconsistent with the prior
codicil. Therefore, the circuit court granted Appellees’ motion to dismiss for
failure to state a claim upon which relief can be granted. This appeal followed.
STANDARD OF REVIEW
A trial court should not grant a motion to dismiss under CR1 12.02(f),
unless “it appears the pleading party would not be entitled to relief under any set of
facts which could be proved . . . . This exacting standard of review eliminates any
need by the trial court to make findings of fact; rather, the question is purely a
matter of law.” Brown-Forman Corp. v. Miller, 528 S.W.3d 886, 889 (Ky. 2017)
(citations and internal quotation marks omitted). Because the decision whether to
dismiss a petition under this rule involves a question of law, this Court reviews this
case de novo. James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002).
1 Kentucky Rules of Civil Procedure.
-4- ANALYSIS
We conclude the circuit court correctly interpreted the law and
committed no error. 2 Therefore, we affirm its ruling and adopt its conclusions.
It is well-settled that “a will and codicil are to be regarded as a single
and entire instrument for the purpose of determining the testamentary intention and
disposition of the testator[.]” Fidelity & Columbia Trust Co. v. Vivian, 294 Ky.
390, 171 S.W.2d 987, 988 (1943) (quoting 28 R.C.L. 199, section 157). “Both
instruments together will be construed as if they had been executed at the time of
the making of the codicil.” Id. (citation omitted). “A revocation by a codicil of a
gift in the will extends only so far as the will is inconsistent with the codicil, and a
gift once made by will is not to be cut down by a subsequent codicil unless the
intention of the testator to that effect appears clearly or by necessary implication.”
Id. (citation omitted). Additionally, “[a] revocation by codicil occurs only by
express words or necessary implications.” Stivers v. Mitchell, 314 S.W.2d 569,
571 (Ky. 1958) (citation omitted).
2 Appellants argue the court made a judicial error in its findings. They believe the circuit court thought the GRAT was automatically set up to transfer to the trust agreement. If this was a misunderstanding, in fact, it does not warrant reversal. We conclude the GRAT was to terminate after two years. According to Section 2.1(e), “upon the expiration of two (2) years after the date of this Trust Agreement, or Settlor’s death, whichever shall first occur, this trust shall end and be distributed as hereinafter provided in Paragraph 2.2.” After the two years, Marvin amended his will to direct his assets to the trust agreement. Any judicial error that may have occurred is irrelevant to this review.
-5- We agree with the circuit court that application of well-settled law to
the facts of this case leads to the conclusion that Marvin did not intend to substitute
the language in Section 2.3 pertaining to the power of appointment with language
regarding his funeral arrangements. He did not expressly revoke the previous
Section 2.3. He merely added to the section. Beyond using the same section
number, there is nothing in the second Section 2.3 that is inconsistent with the first
Section 2.3.
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