Linda M. Turner v. Sally A. Kent and Stanley J. Kazlauski

15 N.E.3d 67, 2014 WL 3753268, 2014 Ind. App. LEXIS 369
CourtIndiana Court of Appeals
DecidedJuly 31, 2014
Docket64A05-1310-TR-510
StatusPublished
Cited by2 cases

This text of 15 N.E.3d 67 (Linda M. Turner v. Sally A. Kent and Stanley J. Kazlauski) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linda M. Turner v. Sally A. Kent and Stanley J. Kazlauski, 15 N.E.3d 67, 2014 WL 3753268, 2014 Ind. App. LEXIS 369 (Ind. Ct. App. 2014).

Opinions

OPINION

BRADFORD, Judge.

CASE SUMMARY

Appellant-Respondent Linda Turner, trustee and beneficiary of the Kazlauski Family Trust (the “Trust”), appeals the trial court’s grant of summary judgment in favor of Trust beneficiaries Appellees-Pe-titioners Sally Kent and Stanley Kazlauski on the issue of whether a separate writing prepared after the execution of the Trust validly modified the Trust’s distribution [68]*68terms. The separate writing provides for specific gifts of real property to Linda and Stanley. The trial court determined this to be an invalid attempt to incorporate by reference. On appeal, Linda argues that the writing constitutes a valid amendment to the Trust and, alternatively, a valid incorporation by reference. We conclude that the settlor intended the separate writing to be incorporated by reference into the Trust and, therefore, that it cannot be construed as an amendment to the Trust. We further conclude that the Indiana Trust Code prohibits incorporation by reference of specific gifts of real property and, therefore, that the separate writing is an invalid incorporation by reference. We affirm the trial court’s grant of summary judgment in favor of Sally and Stanley.

FACTS AND PROCEDURAL HISTORY1

Alexander and Selma Kazlauski established the Trust on March 5, 2004, designating themselves as trustees and beneficiaries during their lifetimes. The distribution terms of the Trust provide as follows:

1. Upon the death of the survivor of us, our successor trustee(s) shall take charge of the assets then remaining in this trust, pay all of the legally enforceable debts of the survivor of us ... and any and all other expenses incurred in closing out this trust and making distribution of assets thereof....
2. Proceeds remaining after the previous provisions have been complied with shall be distributed according to the following plan of distribution:
a. Our children are SALLY A. KENT, LINDA M. TURNER and STANLEY J. KAZLAUSKI.
b. We may from time to time indicate our desire that specific gifts be made from this living trust upon the death of the survivor of us. If we make known our desire in writing referring to or attached to this trust agreement, upon the death of the survivor of us, the trustee(s) shall distribute the specific gifts as if the specific gifts had been made in this trust agreement itself. In dating the specific gift document, it is not our intention to redate the entire trust agreement.
c. We direct that our successor trustee(s) divide our personal effects ... (except those items which are specifically given to a beneficiary elsewhere in this trust agreement in which case said specific gift shall take precedence over this paragraph), among our surviving children as they may agree or, failing such agreement, in such manner as our successor trustee(s) may deem equitable. ...
d. The net proceeds of this trust shall be divided between our children, SALLY A. KENT, LINDA M. TURNER and STANLEY J. KAZLAUSKI, in equal shares [ (“the Equal Shares Provision”) ].
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Appellant’s App. p. 32-33. The Trust also contains the following provision regarding the surviving grantor’s power to amend the Trust:

After the death of the first grantor to die, the surviving grantor may amend the trust, in whole or in part, by an [69]*69instrument in writing, signed by the surviving grantor and delivered to all acting trustee(s) (which may be the surviving grantor)....

Appellant’s App. pp. 34-85.

Alexander died on June 7, 2005. Three years later, Selma completed, signed, and dated a form titled, “Specific Gifts Upon Death” (“the Specific Gifts Form” or the “Form”). This separate writing provides:

Pursuant to the provisions of our revocable living trust which incorporates this specific gifts form by reference, we instruct the trustee(s) to distribute the following gifts:

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Appellant’s App. p. 48.

Selma died on August 15, 2010. At that time, she owned a parcel of real estate (“the Parcel”) “containing approximately 20 acres” and “[v]alued at $325,000.00 for inheritance tax purposes[.]” Appellant’s App. p. 11. Both homes listed in the Specific Gifts Form are located on the undivided Parcel.

Linda has been acting as successor trustee since Selma’s death. On November 5, 2012, Sally and Stanley filed petitions to docket the Trust and for interpretation of certain Trust provisions. With regard to the latter, Sally and Stanley claimed the Specific Gifts Form constitutes an invalid attempt to incorporate by reference specific gifts of non-personal property. Sally [70]*70and Stanley moved for summary judgment on this issue on March 4, 2013. A hearing on their motion was held on August 28, 2013, during which Linda claimed the Specific Gifts Form constitutes a valid amendment to the Trust. The trial court agreed with Sally and Stanley and, on September 30, 2013, granted summary judgment in their favor.

DISCUSSION

Linda challenges the trial court’s grant of summary judgment in favor of Sally and Stanley. “When reviewing a grant or denial of summary judgment, our standard of review is de novo.” Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind.2006). Summary judgment should only be granted if the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). The parties do not dispute the operable facts of this case but rather the meaning of those facts under the Indiana Trust Code. Linda argues that summary judgment is inappropriate because the Specific Gifts Form constitutes a valid amendment to the Trust and, alternatively, a valid incorporation by reference into the Trust.

I. Whether the Specific Gifts Form Constitutes a Valid Amendment

Linda argues that the Specific Gifts Form satisfies the amendment requirements of the Trust Code and, therefore, should be construed as an amendment to the Trust.2 Sally and Stanley counter that the Specific Gifts Form must be construed as an incorporation by reference because that is Selma’s intention. We agree with Sally and Stanley.

Although we strive to construe a trust instrument “in a manner which renders the trust operative and effective,” Hauck v. Second Nat. Bank of Richmond, 153 Ind.App. 245, 260, 286 N.E.2d 852, 861 (1972) (citing Crawfordsville Trust Co. v. Elston Bank & Trust Co., 216 Ind. 596, 25 N.E.2d 626 (1940)), “[tjhis Court cannot vary or delete terms used in the instrument.” Stowers v. Norwest Bank Ind., N.A., 624 N.E.2d 485, 489 (Ind.Ct.App.1993) (citing Waters v. Bishop 122 Ind. 516, 519, 24 N.E. 161, 162 (1890)).

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15 N.E.3d 67, 2014 WL 3753268, 2014 Ind. App. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linda-m-turner-v-sally-a-kent-and-stanley-j-kazlauski-indctapp-2014.