In re Estate of Davis
In In re Estate of Davis (1996) 109 Ohio App. 3d 181 671 N.E.2d 1302, the trustor reserved the power to revoke or amend the trust during his lifetime.
The trustor died, and his will referred to property and the trust but then disposed of the property in a way different from that in the trust, eliminating one beneficiary and increasing the amounts distributed to the others. The legal issue before the court was whether the trustor's will could amend or revoke the trust. (Id. at p. 1303.)
The court explained that if a trustor retains a restricted right to amend or revoke during his life, then a revocation or amendment is valid only if it takes effect before his death. (Ibid.) The court acknowledged the general rule that a will does not take effect until the testator's death. (Id. at p. 1304.)
However, the court recognized an exception:
"A will can operate as an in praesenti instrument capable of revoking or amending a revocable trust during the life of the settlor where the settlor uses language that appropriately manifests an intention to do so. 'An instrument that contains language appropriate to two or more different types of instruments will be construed in accordance with the intention of the testator as deduced from the instrument as a whole and from any extrinsic evidence that might be introduced ... .' " (Ibid.)
Turning to the facts before it, the court concluded that the record revealed an intent to amend the trust. The court noted that the trustor mentioned the trust and trustee. Although he did not expressly use the word "revoke" or "amend" or repeat the distribution directions in the trust, he significantly altered the distribution. Thus, because the will manifested the trustor's intent to immediately amend the trust, the court held that it separately operated as an "in praesenti instrument and effectively amended the trust terms." (Ibid.)