IN RE ESTATE AND TRUST OF PILAFAS Arizona Court of Appeals, 1992, 172 Ariz. 207, 836 P.2d 420
I. Facts.
Steve J. Pilafas (the decedent) executed an inter vivos trust and a will directing that upon decedent’s death, a portion of the trust estate be distributed to the eight non-profit organizations (the appellants). James S. Pilafas the decedent’s son (the appellee), filed a petition, seeking a determination that decedent had revoked his trust agreement and will and died intestate, leaving his five adult children as his lawful heirs. The trial court found for decedent’s children. The remainder beneficiaries under an inter vivos trust agreement appeal the trial court’s determination that the decedent revoked his inter vivos trust and will and died intestate.
II. Issue.
l Whether appellees presented sufficient evidence that decedent revoked his will.
l Whether the trial court erred in determining that decedent effectively revoked his inter vivos trust.
III. Reasoning.
A. Rules.
1. Cf. Estate of Travers, 121 Ariz. 282, 283, 589 P.2d 1314, 1315 (App. 1978)
- Common law presumption that a testator destroyed his will with the intention of revoking it if the will is last seen in the testator's possession and cannot be found after his death.
2. George G. Bogert and George T. Bogert, Trusts & Trustees § 998 (2d ed. rev. 1983)
- Interests cannot be taken from [the beneficiaries] except in accordance with a provision of the trust instrument, or by their own acts, or by a decree of a court.
Restatement (Second) of Trusts § 330 (1959)
- The settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power.
- Except as stated in §§ 332 and 333, the settlor cannot revoke the trust if by the terms of the trust he did not reserve a power of revocation.
Austin W. Scott and William F. Fratcher, Scott on Trusts §§ 330, 330.8 (4th ed. 1989)
- When the settlor reserves a power to revoke his trust in a particular manner or under particular circumstances, he can revoke it only in that manner or under those circumstances
B. Application
1. The Appellee contends that the decedent had an intention to revoke the will despite being not able to find the original document eventually. The common law presumption states that if a will is last seen in the possession of the testator who had the intention to revoke it, it is construed that the will was destroyed by the testator in an attempt to revoke it. Cf. Estate of Travers, 121 Ariz. 282, 283, 589 P.2d 1314, 1315 (App. 1978). Additionally, testimony indicated that the decedent would keep all the important document in his possession and the fact that the appellee diligently searched for the original will by submitting affidavits lends more credibility to the appellee’s contention compared to the appellants, who proffered no evidence.
2. In the same vein, by applying the same legal presumption, the appellee contends that the inter vivos trust agreement should also be considered ‘revoked’ since it was also not found. However, George G. Bogert and George T. Bogert, Trusts & Trustees § 998 (2d ed. rev. 1983) declares that the interests of remainder beneficiaries cannot be taken away unless there is a provision or a decree of a court that enables revocation. Thus, since the revocation of the trust would result in taking the appellants’ interests away, the revocation is not valid. Additionally, a settlor can revoke a trust only if the settlor reserves a power of revocation. Restatement (Second) of Trusts § 330 (1959). Moreover, when a settlor reserves the power to revoke his trust in a particular manner, he can only revoke it in that manner. Austin W. Scott and William F. Fratcher, Scott on Trusts §§ 330, 330.8 (4th ed. 1989). That is, in order to claim revocation of a trust, mere testimony asserting that the decedent intended to revoke and that he would have destroyed the trust, does not itself render the trust is revoked.
IV. Holding.
The trial court’s ruling that decedent revoked his will and died intestate affirmed. The court’s ruling that decedent revoked his trust agreement and amendment thereto reversed. Remand for proceedings consistent with this opinion.