Kimberlin, et al. v. Dull, 218 S.W. 3d 613 (Mo. App. W.D. 2007)

Factual Background:

    Beneficiaries of trust filed lis pendens action to prevent distribution of sale assets, seeking declaratory judgment construing terms of trust.

Held:

    The Circuit Court, Clay County, Larry D. Harman, J., found that settlor could amend trust after other settlor's death and that altered, irrevocable trust was valid. Successor personal representative of settlor's estate appealed.

On Appeal:

    Affirmed.  The Court of Appeals, Victor C. Howard, C.J., held that trust allowed amendment of trust after death of one of the settlors.  Trust, which allowed settlors “acting jointly only” to amend or alter trust, allowed amendment of trust after death of one of the settlors; phrase “acting jointly only” contemplated only pre-death amendments, trust explicitly allowed surviving settlor to revoke trust, and it would have served no purpose to allow revocation of trust and creation of new trust with same corpus while prohibiting amendment of trust. Generally, where a trust provides a power to revoke, there is a power to amend. Restatement Third, Trusts § 63.