from the DeKalb Superior Court The Honorable Monte L. Brown,
Judge Trial Court Cause No. 17D02-1810-TR-4
ATTORNEYS FOR APPELLANT Katherine Ridenour Benjamin S.J.
Williams Shambaugh, Kast, Beck, & Williams, LLP Fort
ATTORNEYS FOR APPELLEE - STEVEN E. POST Karen T. Moses Damian
B. Gosheff Faegre Baker Daniels, LLP Fort Wayne, Indiana
Jeffrey L. Turner Auburn, Indiana
ATTORNEYS FOR APPELLEE -INDIANA ATTORNEY GENERAL Curtis T.
Hill, Jr. Attorney General of Indiana Frances Barrow Deputy
Attorney General Indianapolis, Indiana
of the Case
This appeal asks us to consider the validity of the following
residuary clause in a revocable living trust:
The Trustee shall hold, distribute and pay the remaining
principal and undistributed income in perpetuity; subject,
however, to limitations imposed by law.
All the powers given by law and the provision[s] of the
[T]rust may be exercised in the sole discretion of the
Trustee without prior authority above or subsequent approval
by any court.
Appellant's App. Vol. II at 15. We hold that that
language does not identify a beneficiary with reasonable
certainty, and, as such, it fails as a matter of law.
Accordingly, we conclude that the residue of the trust-$4,
600, 000-is to be held by the trustee on behalf of the
settlor's estate. As the settlor died without a will, the
residue of the trust shall be distributed in accordance with
the law of intestate succession.
and Procedural History
On July 1, 2010, Ollie Waid, Jr. established a revocable
living trust ("the Trust"), which he subsequently
amended on several occasions prior to his death in 2018. The
final version of the Trust provides as follows:
The Settlor[, Waid, ] has delivered to the Trustee the
property described in Schedule A, attached hereto . . . .
That property and any other property that may be received by
the Trustee from the Settlor as additions to this Trust shall
be held and disposed of by the Trustee . . . on the terms
stated in this Agreement. . . .
* * *
During the life of the Settlor, the qualified and acting
Trustee shall pay all the net income of the Trust estate and
such portions of the principal as the Settlor may from time
to time direct to the Settlor.
Notwithstanding any other provisions of this Agreement, if at
any time a qualified and acting Trustee determines in good
faith that the Settlor, because of mental or physical
incompetency, is unable to properly administer his affairs,
the qualified and acting Trustee shall, within [his] sole
discretion, use so much of the net income and any portions or
all of the principal for the support, comfort, and welfare of
the Settlor. . . .
After the death of the Settlor, the Trustee shall administer
the [T]rust individually and shall continue to hold title to
all assets in the [T]rust until appropriate distribution can
be lawfully made.
The Trustee may prepare or supervise the preparation of all
tax returns that are due as a result of the Settlor's
death. . . . After the appropriate tax returns are filed and
the taxes paid, then the Trustee shall proceed to distribute
the residuary trust estate as outlined in Article VII.
[The Trustee] shall have all powers enumerated under the
Indiana Code and[/]or State of Florida [sic] and any other
power that may be granted by law, to be exercised without the
necessity of Court approval, as the Trustee, in his sole
discretion, determines to be in the best interests of the
beneficiaries. Said powers are to be construed in the
broadest possible manner . . . .