Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, June 29, 2009

Implied requirement of good faith allows beneficiaries to recover

Kansas A prenuptial agreement provided that if the husband died first, wife would maintain a valid will giving not less than one-quarter of her entire estate to each of her husband’s three sons. The husband’s will left a substantial portion of his estate to his wife.

After the husband’s death, his wife made transfers to irrevocable trusts which greatly reduced her probate estate. Her will left her probate estate to husband’s sons.

After the wife died, his sons sued and the Supreme Court of Kansas upheld the imposition of a constructive trust in their favor. The confidential relationship between the husband and his wife gave rise to an implied duty in the wife not to make gifts inconsistent with her obligations under the agreement. The nonclaim statute does not bar what is in essence an action by the wife’s estate to marshal assets nor is the action barred by the statute of limitations because the right of action did not accrue until the wife’s death.

Estate of Draper v. Bank of America, N.A., 205 P.3d 698 (Kan. 2009).


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