A Strong Offense
A Stronger Defense
We’ve looked at a number of cases where parties sought to modify the terms of a trust. And there are plenty of good reasons why a trust might need to be modified from circumstances not anticipated by the settlor to simply a scrivener’s error in drafting the instrument. But, whatever or wherever the case may be, there is a good chance that a court is going to require some significant evidence to justify the modification. And that’s what the daughter of Donald Ross Frost was unable to provide to an Arkansas court in Erwin v. Frost.
Donald Ross Frost and Shelby Lee Frost created the Donald Ross and Shelby Lee Frost Revocable Living Trust. After Donald died, Shelby amended the trust to remove as beneficiaries Donald’s three daughters from a previous marriage.
Donald’s daughter, Lori Erwin, filed a complaint asking that the trust be declared irrevocable. Erwin claimed that Donald suffered from diminished capacity when the trust was executed, and that whether through scriviner’s error, misunderstanding, overreaching, undue influence, or lack of understanding by Donald, the trust appeared to be revocable up to the death of the second settlor. Erwin asked the court to declare the trust irrevocable to accomplish “the obvious intent of the deceased” to care for all of his children equally.
If Donald was unduly influenced or incapacitated at the time he executed the trust, why would that have made the trust irrevocable as opposed to void ab initio? It seems the relief sought was actually to modify the trust to better reflect the settlor’s alleged intent. Nevertheless, there was insufficient evidence to declare the trust irrevocable or to modify the trust. Without covering the details of this “fact-heavy case,” Erwin acknowledged that there was conflicting testimony before the trial court regarding Donald’s intent when he prepared and signed the trust. Accordingly, Erwin was unable to show that the trial court’s findings refusing to modify the trust were clearly erroneous.