Attempt to Disinherit Spouse Goes Awry - With an Assist to Faulty Drafting

The plaintiff and his wife resided in Utah and had been married for 18 years before divorcing in 2006.  In 2002, the plaintiff had formed a trust which stated that the "validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada.  The administration of each trust shall be governed by the laws of the state in which the Trust is being administered."  The couple contributed their assets to the trust, including the wife's portion of their primary residence (NV is a community property state).  However, the trust did not name the wife as a beneficiary.  Rather, the named beneficiaries were the plaintiff "during his lifetime" and "the Settlor's [plaintiff's] spouse," and "the settlor's issue."  Thus, once the divorce occurred, the wife (now ex-wife) no longer had any beneficial interest in the trust.  Compounding matters, under NV law, the trust would be treated as an irrevocable trust that couldn't be amended.  But, on that point, a drafting was critical.  The trust stated, "The trust hereby established is irrevocable.  Settlor reserves any power whatsoever to alter or amend any of the terms or provisions hereof [emphasis added].  After the parties divorced, the wife sued alleging, among other things, that the plaintiff used the trust to disinherit her out of her share of the marital assets. The trial court ruled for the plaintiff on the trust issue, and the wife appealed.  On the choice of law issue, the court noted that because the action was filed in Utah, Utah law would govern whether UT or NV law would apply to the trust.  While UT law requires courts to enforce a trust's choice-of-law provision, an exception exists if doing so would violate public policy.  On that point, the court determined that utilizing NV law would violate the UT principle of equitable distribution of marital property and that this was a strong public policy to uphold.  Thus, the court held that UT law would apply to the trust.  On the issue of the irrevocability of the trust, while the trust stated that NV law was to apply, that was a moot point because the court had already determined that UT law would apply to the trust.  While the plaintiff argued that he couldn't amend the trust, the court disagreed and construed the unclear drafting of "any" against him when it was supposed to say "no".  As such, the plaintiff could amend the trust and the trust was rendered revocable, and the ex-wife could revoke the trust as to the property that she contributed to it because the court deemed her to be a settlor with respect to those assets.  A contributor of assets to a trust, the court reasoned, is a settlor of the trust.   What property the ex-wife contributed to the trust was to be determined on remand by the trial court.  Dahl v. Dahl, Nos. 20100683, 20111077, 2015 Utah LEXIS 51 (Utah Jan. 30, 2015).      

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