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Appeals panel: Trust’s real property bequeath by later writing invalid

July 31, 2014

A panel of the Indiana Court of Appeals ruled Thursday that a mother’s specific gift of real property incorporated into trust documents was an invalid method of willing it to heirs.

The panel affirmed summary judgment in favor of the appellees-petitioners in Linda M. Turner v. Sally A. Kent and Stanley J. Kazlauski, 64A05-1310-TR-510.

Linda Turner is trustee and a beneficiary. She appealed Porter Superior Judge William Alexa’s ruling that when the mother separately wrote a specific gifts form willing real property to Sally Kent and Stanley Kazlauski, this constituted an invalid attempt to incorporate by reference.

“We conclude that the settlor intended the separate writing to be incorporated by reference in to the Trust and, therefore, that it cannot be construed as an amendment to the Trust,” Judge Cale Bradford wrote for the panel. “We further conclude that the Indiana Trust Code prohibits incorporation by reference of specific gifts of real property and, therefore, that the separate writing is an invalid incorporation by reference. We affirm the trial court’s grant of summary judgment in favor of Sally and Stanley.”

The panel wrote it would be up to the trial court to distribute the parcel subject to the equal shares provision of the trust.

Judge Patricia Riley concurred as did Judge Margret Robb, who said she wrote separately, “because I find it unnecessary to determine (mother’s) intention with respect to the Specific Gifts Form in order to reach that conclusion.”
 

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