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Factual Background:

Grantor executed the Gene Wild Revocable Trust (“the Trust”) on July 10, 1990.  In 1991, 1996, 1997, and 1998, the Grantor executed the First through Fourth Amendments to the Trust.  In 2002, Grantor executed the “Restated Revocable Trust Agreement of Shirley Gene Wild” (“the Restated Trust”).  The Restated Trust referenced the original Trust as well as the four amendments.  The Restated Trust neither expressly revoked nor supplanted Grantor’s prior Trust.  The Restated Trust created a single charitable remainder annuity trust (“CRAT”) in favor of College of the Ozarks (“C of O”) and named Cottey College (“Cottey”) a contingent remainder beneficiary.

Grantor had surgeries on her knees and due to cervical cancer in 2003-2004, and, following the 2004 surgeries, went to live at a nursing home; multiple witnesses testified that after her surgery, she began to show signs of increasing forgetfulness and varying degrees of dementia.  Around the time she was admitted to the nursing home, Grantor contacted her brother and asked him to contact his attorney and told him that she wanted to make changes to the Trust.  In 2004, Grantor proceeded to execute the Fifth and Sixth Amendments to the Trust.  The Fifth Amendment provided two equal CRATs:  one to benefit Cottey and one to benefit C of O.  Grantor then passed away in 2005.

On February 1, 2006, Cottey filed a petition requesting declaratory relief and a determination as to whether the Fifth and Sixth Amendments were effective and enforceable, contending it was entitled to share equally in the residue of the Trust with C of O.  The following day C of O brought a declaratory judgment action against Cottey, which was treated as a counterclaim to the petition filed by Cottey.  On August 1, 2007, C of O filed for summary judgment on Counts I and III of its counterclaim.  Cottey then filed for partial summary judgment on Count I of C of O’s counterclaim.

Held:

The Circuit Court of Jasper County granted Cottey’s motion for partial summary judgment as to C of O’s Count I, determining that the Fifth Amendment operated as a valid amendment to the Restated Trust.  The Court then denied C of O’s motion for summary judgment as to Count I and took the motion against Count III under advisement.  The Court ordered the parties to proceed to trial on C of O’s Count II relating to Grantor’s mental capacity to create any amendments to the Trust and set out that if C of O was unsuccessful, then Count III was moot.  After trial, the Court determined that Grantor had the capacity to execute Amendments.  The Court also awarded attorneys’ fees to Cottey and C of O, to be paid from the Trust prior to distribution of the CRATs.

C of O appealed, arguing against the granting of Cottey’s motion for partial summary judgment on Count I, the judgment in favor of Cottey on Count II, and the denial of C of O’s summary judgment motion regarding Count III.  Cottey appealed, arguing against the award of attorneys’ fees to C of O and the award of attorneys’ fees out of the Cottey’s share of the Trust.

On Appeal:

Affirmed.  A restatement of a trust, which has no language revoking or supplanting the trust, can be treated as simply an amendment to the original trust when the grantor’s intent to amend is clear.

Where there is conflicting testimony as to a person’s capacity to amend a trust, the trial court has discretion to weigh the credibility of witnesses’ testimony, including expert witnesses.

In a judicial proceeding involving the administration of a trust, the court may award costs and expenses, including attorneys’ fees, to any party, and such fees can be paid from the trust that is the subject of the controversy.

Rationale:

The paramount rule of construction in determining the meaning of a trust provision is that the intent of the person who created the trust is controlling.  Where there are no provisions in a trust as to the exact manner of amendment, revocation, or alteration or a limit to the number of times the trust can be modified by the grantor, the grantor can alter or revoke the trust in any manner manifesting an intention to alter or revoke.  When a restatement of a trust has no language revoking the trust or supplanting it, and further amendments of the trust reference the original trust as the trust instrument and not the restatement, then it can be inferred that the grantor intended to amend the original trust with the restatement, not revoke it.

When conflicting testimony is presented as to whether a person had capacity to execute a trust document, it is for the trial court to decide the credibility of the witnesses and the weight to be given to their testimony.  In deciding the issue, the court is free to believe none, part or all of the testimony of any witnesses, including expert witnesses.  They are free to reject expert testimony if they do not find it credible.

Finally, Section 456.10-1004 of the MUTC provides that “in a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”  When a court determines that litigation was brought and defended in good faith, it is within the court’s discretion to award attorneys’ fees to any party, including the losing party.  The fees may be paid from the trust, and there is no rule as to whether the fees be paid out before or after distribution to beneficiaries.  Such specific determinations are within the court’s discretion, and thus a court can order attorneys’ fees to be paid out prior to distribution.