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Doll v. Post

Court of Appeals of Indiana

September 3, 2019

Cheryl Barron Doll, Appellant-Plaintiff,
v.
Steven E. Post, Trustee, and Indiana Attorney General, Appellees-Defendants.

          Appeal 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 Wayne, Indiana

          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

          Najam, Judge.

         Statement of the Case

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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:

ARTICLE I
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. . . .
* * *
ARTICLE III
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. . . .
ARTICLE IV
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.
** *
ARTICLE V
[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 . . . .
** *
ARTICLE ...

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