Thursday, August 14, 2014
The Supreme Court of Montana recently held that a joint will did not prohibit transfer to trust by surviving spouse. Spouses executed a joint will dividing the residue of the estate on the death of the second to die among their children by prior marriages and waiving the right to alter, amend, or revoke the will after the death of the first spouse to die. The surviving spouse transferred much of her property to a lifetime trust, and upon her death objections were filed to the proposed distribution under the joint will on the grounds that the will prohibited the surviving spouse from transferring assets to a trust, in which the provisions are not the same as those of the will. The Supreme Court of Montana reversed the trial court’s grant of summary judgment to the objectant, holding that the words of the will did not prohibit a transfer by the surviving spouse into trust. The court remanded for consideration of the objectant’s contention that the terms of the trust did not take control of the property out of the hands of the surviving spouse. Estate of Hedrick v. Lamach, 324 P.3d 1202 (2014).
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.