4.99 See Answer

Question: Betty and Dennis Dowdy created the Dowdy


Betty and Dennis Dowdy created the Dowdy Family Trust. The property of the trust comprised of two parcels of real estate. The trust document identified Betty and Dennis as the settlors, the initial trustees, and the initial beneficiaries. The trust document provided for the revocation or amendment of the trust and for distributions to the settlors. It also appointed one of each settlor’s children as co-successor trustees and, following the settlors’ deaths, provided for liquidation and distribution to all of their children.
Dennis had three children, and Betty had two—they did not have any children in common. After Dennis died, Betty amended the trust to remove Dennis’s children as successor trustees and as beneficiaries. Previously, Betty and Dennis had instructed the trust to sell one of the properties. Now, Betty sold the remaining trust property.
Dennis’s son Michael, who was named as a co-successor trustee in the trust document, learned of the sale and filed a petition in a Florida state court against Betty. Michael maintained that Betty’s amendment was invalid because it had been executed after Dennis’s death. He argued that when Dennis died, the trust became irrevocable and he succeeded Dennis as co-trustee. The court ordered Betty to deposit the proceeds of the sale with the court pending its construction of the trust. Betty appealed.
During the Settlors’ lifetime, the trustees, in the trustees’ sole discretion, may pay, invade, or apply the income or corpus [trust property], or so much as they may choose, to or for the benefit, support and maintenance of the initial primary beneficiaries.
Thus, if Betty was the only trustee following the death of her husband, she had sole and unfettered authority to sell the trust property for her own benefit.
Michael claims to be a successor co-trustee under article III of the original trust:
In the event of the death of each of the Initial trustees, the Settlors nominate and appoint Settlors’ son and stepson, Michael R. Dowdy, and Settlors’ daughter and stepdaughter, Deborah Ann Andrews Betty’s daughter, as Co-Successor trustees.
In Michael’s view, the phrase “death of each” meant the death of either initial trustee. Therefore, he either initial trustee. Therefore, he either asserts that he became a co-trustee with Betty upon his father’s death.
Our view is that the succession of trustees occurred only upon the death of both initial trust both initial trust both ees. This view is confirmed by the use of the same phraseology elsewhere in the original trust document.
Article V provides:
After the death of each of the Settlors, the Co-Successor trustees are directed to liquidate the Trust Estate and immediately pay and distribute the Trust Estate to the children and stepchildren of the Settlors.
Clearly, in this instance the phrase “death of each” must mean the death of both. Otherwise, the article’s direction to liquidate the trust estate and immediately distribute it to the settlors’ children would nullify article IV’s grant of authority to invade the income or corpus of the trust for the benefit of the initial primary beneficiaries “or the survivor.” Indeed, upon the death of one settlor it would altogether nullify the survivor’s status “or the survivor.” Indeed, upon the death of one settlor it would altogether nullify the survivor’s status “or the survivor.” as beneficiary. This, of course, would be an absurd interpretation in complete contravention [contradiction] of a central purpose of the trust…………………………………………………..

Required:
According to Michael’s view of the phrase “death of each,” how many co-trustees would have succeeded Dennis on his death? Explain.
Suppose that the Dowdy Family Trust had provided for a specific child to become co-trustee on the death of his or her parent—Deborah to succeed Betty, for example. How would the result have been different?


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4.99

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