Murano v. Jacobs

2016 OK CIV APP 50, 377 P.3d 1258, 2016 Okla. Civ. App. LEXIS 18, 2016 WL 4083025
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 26, 2016
DocketCase Number: 113521
StatusPublished
Cited by1 cases

This text of 2016 OK CIV APP 50 (Murano v. Jacobs) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murano v. Jacobs, 2016 OK CIV APP 50, 377 P.3d 1258, 2016 Okla. Civ. App. LEXIS 18, 2016 WL 4083025 (Okla. Ct. App. 2016).

Opinion

P. THOMAS THORNBRUGH, PRESIDING JUDGE:

{1 Jeromy Murano appeals the declaratory judgments of the district court that he was properly excluded by amendment as a beneficiary of the Murano Revocable Trust, and was not an "omitted child" entitled to share in Naney Murano's estate. On review, we affirm the decision of the district court.

BACKGROUND

A12 In September 1997, Ralph and Nancy Murano created the "Murano Revocable Trust" (Trust). The Trust made Ralph and Naney Murano trustees, and dedicated the benefits of the Trust to themselves during their lifetimes, It appointed new trustees upon the deaths of Ralph and Naney, and provided for shares to nine beneficiaries, including plaintiff Jeromy Murano (Murano). At the same time, Nancy Murano made a will (Will) bequeathing all residue of her estaté to the Trust. In January 2018, after Ralph Mu-[1260]*1260rano's death, Naney Murano made amendments to the Trust, deleting the existing paragraph on beneficiaries, and adding a new paragraph listing only four beneficiaries. Jer-omy Murano was not among these amended beneficiaries. Nancy Murano was ill with multiple selerosis at the time of the amendment, and having considerable difficulty writing. She signed the amendment with a X and her initials, although she did later manage to sign a notarized document requesting her attorney to implement the Trust amendment.

. 18 After Nancy Murano's death, Jeromy Murano challenged this Trust amendment, claiming her mark and initials were legally insufficient to amend the Trust, He later added theories that Naney Murano was not competent.at the time of the amendment, and that he was an "omitted child" or pretermit-ted heir in the Will, and entitled to a share of .the Trust property pursuant to 84 O.S. 132, and In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584, In November 2014, the district court issued a declaratory judgment finding that: 1) Murano was not a pre-termitted heir, and 2) Naney Murano's amendments to the Trust were legally effective to remove Murano as a beneficiary. Jero-my Murano now appeals. .

STANDARD OF REVIEW

14 Issues that arise in the context of administration of trusts are matters of equitable cognizance. See In re Lorice T. Wallace Revocable Trust, 2009 OK 34, 219 P.3d 586. "In an equitable matter, the Court will examine the whole record and weigh the evidence, but the trial court's findings will not be disturbed in that review unless they are clearly against the weight of the evidence or some governing principle of law." Id. "Probate proceedings are of equitable cognizance." In re Estate of Holcomb, 2002 OK 90, ¶ 8, 63 P.3d 9. "The emphasis of the judicial process from beginning to end is to discern and effectuate the decedent's dispositive intent." Id. We will not disturb the trial court's decision unless it is "found to be clearly contrary to the weight of the evidence or to some governing principle of law." In re Estate of Maheras, 1995 OK 40, ¶7, 897 P.2d 268; We are required to review questions of law, such as the construction of statutes, under a de novo standard of review. In re Estate of Jackson, 2008 OK 83, ¶ 9 194 P.3d 1269.

ANALYSIS

T5 This appeal presents two questions of law. The first is whether the holding of In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584, requires property to be distributed to Murano as an "omitted child" despite the Trust amendments. Title 84 O S. 2011 182 provides:

When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if. he had died intestate, and sue-ceeds thereto as provided in the preceding section.

T6 In Richardson, 'the plaintiff sought an omitted child's share from the estate of his deceased father, The executor moved for summary judgment on the basis that decedent intentionally omitted plaintiff in an amendment to a pour-over trust executed after decedent's Will. Id., 1 1. The trial court granted summary judgment, but Division I of this court reversed, holding that

. the provisions of a pour-over trust, which have been amended after a will is executed, are not incorporated by refer-enee in the will so that the amended provisions of the trust constitute competent evidence of the testator's intent to omit an heir as required by Oklahoma's pretermit-ted heir statute.

T7 Richardson thus held that an amendment to a trust mentioned in a will is not effective if it removes a child as a beneficiary of the trust unless the will is similarly amended to show a clear intent to omit the child from any distribution.

T8 Richardson appears, however, to be in opposition to Welch v. Crow, 2009 OK 20, ¶ 5, 206 P.3d 599. In that case, an dnmter vivos trust conveyed property to two children, Jean Ann Morgan and Mary K. Crow. The associated will recognized that decedent had four children; Jean Aun Morgan,; Mary K. Crow, Jerry Welch, and Martin Welch. Mar[1261]*1261tin Welch was deceased at the time of the will's execution. There was no language expressly omitting Martin Welch or his children from the will. Martin Welch's children therefore sued to obtain a share of the trust property as pretermitted heirs.

[ 9 The Supreme Court reiterated that:

Our recent opinion in In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, is disposi-tive of the question. There, we held that 182 "unambiguously pertains only to wills. It does not encompass a situation where a «child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts." In the instant cause, the grandchildren are not entitled to a statutory share in the Trust.

Id. The Supreme Court concluded that only the named beneficiaries of the trust should receive a distribution.

1 10 We find no authority indicating that the Supreme Court explicitly disavowed the rule of Richardson in. these later cases. The question, therefore, is whether this case falls under the rule of Richardson (child omitted from will) or Welch (child omitted from trust). We find a crucial difference between this case and Richardson. In Richardson, the will did not refer to the son by name or by class. Richardson, 18. In this case, the will did refer to Murano as a child, and stated that the residue of the estate was to be distributed pursuant to the Trust agreement. The facts in this case are very close to those in Weich, and we find the result of Welch applicable in this case. We also find this result logical based on broader principles.

$11 A will that bequeaths the contents of a revocable trust in which the settlor is both trustee and beneficiary bequeaths nothing until the settlor's death. Hence, the intent of the testator is determined by the contents and provisions of the trust at the time it becomes irrevocable. Nancy Mura-no's intent shown in the Will was clearly and unambiguously to bequest to her heirs only what she gave them in the Trust instrument, which was subject to change at any time before her death. Murano was not omitted from the Will, but was bequeathed whatever the Trust provided for him. In this case it provided nothing. We find no principle that a worthless bequest renders the recipient an "omitted child." Rather, we find it logical that.

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2016 OK CIV APP 50, 377 P.3d 1258, 2016 Okla. Civ. App. LEXIS 18, 2016 WL 4083025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murano-v-jacobs-oklacivapp-2016.