Thursday, September 27, 2007
Extrinsic evidence of a promise not to revoke a trust inadmissible where the settlors expressly made the trust revocable
The decedent and his wife created trusts both of which were expressly stated to be revocable. Each trust named the other spouse as the income beneficiary and when both spouses were dead, the remainders were to be distributed equally to decedent’s three children and wife’s four children.
After wife’s death, the decedent remarried, revoked his trust, and created a new trust the remainder of which passed on his death only to his three children. The wife’s children sued alleging breach of a contract not to revoke the trusts and fraudulent inducement by the decedent.
The court in Kempton v. Dugan, 224 S.W.3d 83 (Mo. Ct. App. 2007), held that there was no ambiguity in the revocation provision, that extrinsic evidence of an agreement not to revoke therefore was inadmissible, and that the evidence presented on the fraud count was insufficient because it related to a time after the creation of the trusts.