[WSBAPT] Can TEDRA Modify Will Provisions

[James Jackson]

RCW 11.96A.125 provides:
 
The terms of a will or trust, even if unambiguous, may be reformed by
judicial proceedings under this chapter to conform the terms to the
intention of the testator or trustor if it is proved by clear, cogent,
and convincing evidence that both the intent of the testator or trustor
and the terms of the will or trust were affected by a mistake of fact or
law, whether in expression or inducement.
 

So, I'd say yeah.

 

From: Paul Neumiller [mailto:pneumiller at hotmail.com] 
Sent: Monday, June 01, 2015 4:07 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Can TEDRA Modify Will Provisions

 

Doug, did you get any responses off-list to your post?  I haven't seen
any answers posted to the list.  

 

From: wsbapt-bounces at lists.wsbarppt.com [
mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Douglas Bratt
Sent: Thursday, May 28, 2015 5:23 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Can TEDRA Modify Will Provisions

 

Hello Listmates:

 

Husband and Wife have three sons, all over the age of majority.

 

Husband (considerably older) and Wife signed wills, both with
testamentary provisions putting their respective interests in the family
home into an irrevocable Trust, for the benefit of the survivor, with
their oldest son named as Trustee.  Unfortunately, no Community Property
Agreement was entered into.

 

Husband died.  Probate not yet filed.  Currently, Wife owns half of
house, outright, and the other half, if the will is followed, will be in
Trust for benefit of Wife.  

 

Language appears to be as would be used in a Special Needs Trust,
indicating that Trustee can pay Wife's expenses, "but only such expenses
over and above the ones which would be paid by any local, state, or
federal government or from any private or public profit or non-profit
organization if the trust and its assets were not in existence."

 

A further provision states that if the beneficiary is not receiving
gov't benefits, based upon need or disability, "the trustee shall have
the absolute and sole discretion to determine what disbursements shall
be made from the trust estate for the beneficiary's benefit."

 

Wife has no medical issues and is unlikely to have any such issues for
quite some time, based upon her present age.  

 

Question is whether or not the Wife, and her three sons (the ultimate
beneficiaries) can enter into a TEDRA Agreement, right at start of
probate, to allow for wife to directly receive the husband's half of the
house instead of having to set up the trust and then having the Trustee
decide that a full disbursement from the Trust shall be made for
beneficiary's benefit, since she is not receiving gov't benefits based
upon need or disability when that transfer takes place.  Seems like too
many complications involved with getting to the goal (of full ownership
by Wife) if the Trust has to be established per the Will.

 

Wife and all three sons are in full agreement that she should have full
ownership of house.

 

What say ye, old (and young, and in-between) wise ones?

 

Regards,

 

Doug Bratt

 

Douglas J. Bratt

Lawyer

 

 

 

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