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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-074

Filing Date: April 17, 2014

Docket No. 32,632

IN THE MATTER OF THE ESTATE OF

DARRELL R. SCHLICHT, deceased,

and concerning

STEPHAN E. BARLOW,

Plaintiff-Appellant,

v.

RODNEY OLGUIN, as personal representative

of the Estate of Darrell Robert Schlicht,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

James Lawrence Sanchez, District Judge

Pregenzer Baysinger Wideman & Sale, P.C.

Marcy Baysinger

Albuquerque, NM

for Appellant

Law Office of Tibo J. Chavez, Jr.

Tibo J. Chavez, Jr.

Belen, NM

for Appellee

OPINION

SUTIN, Judge.

{1} In this trust litigation, we interpret a statute in the Uniform Trust Code in order to
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resolve a conflict between Plaintiff Stephen E. Barlow, who was to take under a trust, and

Defendant Rodney Olguin, who was to take under a will if the trust settlor successfully

revoked the trust with the will. The critical question is whether a will that revokes a trust

can constitute an effective revocation, given that a will is generally considered ineffective

unless and until the testator dies and the will is probated. The district court held that the trust

was effectively revoked by the will, thus permitting distribution of the settlor’s/testator’s

property to Olguin. Barlow appeals. We hold that the district court did not err. 

BACKGROUND

{2} Darrell R. Schlicht (the settlor) executed the Darrell R. Schlicht Revocable Trust

Agreement on November 1, 1991. The last, amendment number four, of several

amendments to the trust executed by the settlor, reflects that as of the date of the fourth

amendment, November 3, 1998, the settlor and Mae Verlea Schlicht, his wife, were trustees

of the trust, and if the settlor and Verlea were unable to serve as successor trustees, Stephen

E. Barlow, was to serve as successor trustee. Further, based on an earlier amendment

pursuant to which Verlea was named as the intended recipient distributee of any balance

remaining in the trust, the fourth amendment stated, “[i]n the event of the death of Mae

Verlea Schlicht prior to complete distribution of her share, such trust share or the remainder

thereof, shall be distributed to Stephan E. Barlow, or to his descendants by right of

representation should she predecease me.” Barlow was Verlea’s nephew.

{3} Section 5.1 of the trust contained the following provision related to revocation of the

trust.

The [settlor] reserves the right and power at any time or times during

[the settlor’s] lifetime without the consent of any other person to amend this

Agreement in whole or in part, and to revoke or terminate this Agreement as

it affects the [settlor’s] separate and community property by a duly executed

instrument to that effect, signed by the [settlor] and delivered to the Trustee.

This revocation-related Section 5.1 came into question when Verlea died on December 17,

2010, and Darrell died a day later on December 18, 2010, leaving a Last Will and Testament

he had executed on December 16, 2010 (the will). The will stated:

That I, Darrell Robert Schlicht . . . , hereby make, publish[,] and

declare this to be my LAST WILL AND TESTAMENT, hereby revoking any

and all former Wills, Codicils[,] and Testamentary dispositions of any kind

or nature heretofore made by me at any time, and also revoking any trust

provision of the Darrell R. Schlicht Revocable Trust Agreement dated

November 1, 1991, relating to the death of Mae Verlea Schlicht and her share

in such trust agreement, which shall pass into my estate and be distributed in

accordance with the provisions of my last will and testament. 
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{4} The settlor, as testator under his will, appointed Rodney Olguin as personal

representative and gave, devised, and bequeathed all of his estate to Olguin. Olguin and his

wife were the caretakers for the settlor and Verlea for a number of years.

{5} The will was admitted to informal probate on January 3, 2011, in the district court.

Olguin was appointed personal representative of the estate. On February 15, 2012, Olguin

filed a motion to be appointed successor trustee of the trust on the ground that the will

revoked the trust. Barlow opposed the motion. And Olguin replied. After a hearing on

Olguin’s motion in March 2012, the district court (Judge Richard Knowles) requested further

briefs on whether the trust was revoked by the will’s revocation clause.

{6} After a hearing in October 2012 on the supplemental briefing, the district court

(Judge James Lawrence Sanchez) granted Olguin’s motion in a November 26, 2012, order.

NMSA 1978, Section 46A-6-602(C) (2007) was central to the issue before the court. The

section states:

C. The settlor may revoke or amend a revocable trust:

(1) by substantial compliance with a method provided in the

terms of the trust; or 

(2) if the terms of the trust do not provide a method or the

method provided in the terms is not expressly made exclusive, by:

(a) a later will or codicil that expressly refers to the trust or

specifically devises property that would otherwise have passed

according to the terms of the trust; or

(b) any other method manifesting clear and convincing

evidence of the settlor’s intent.

Id.

{7} The court determined that (1) Section 46A-6-602(C) applied to the method of

revocation of the trust; (2) Section 5.1 of the trust set out the requirements for revocation of

the trust, but did not expressly state that those requirements were the exclusive means by

which the trust could be revoked; (3) the revocation of the trust in the will demonstrated

substantial compliance with the terms of the trust related to its revocation and manifested the

settlor’s intent to revoke the trust; and (4) Barlow’s interest in the trust as a remainder

beneficiary was based on the provisions in the trust benefitting Verlea and, consequently,

revocation of trust provisions related to the death of Verlea in the will served to revoke

Barlow’s interest as a beneficiary. The court then held that the will revoked the trust. And

the court appointed Olguin as successor trustee of the trust “for the purpose of transferring

all property from the [trust] to the Estate of Darrell R. Schlicht.” Barlow appealed the
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court’s November 26, 2012, order.

{8} On appeal, Barlow asserts the following points: (1) a trust the terms of which

require revocation by a written instrument executed during the settlor’s lifetime cannot be

revoked by the settlor’s will; and (2) if this Court enforces the revocation as stated in the

will, the revocation was incomplete and Barlow remains entitled to distribution of trust

property.

DISCUSSION

Standard of Review

{9} We agree with the parties that the facts are not in dispute and that the case involves

interpretation of the trust language and statutory construction, requiring our de novo review.

See Oldham v. Oldham, 2011-NMSC-007, ¶ 10, 149 N.M. 215, 247 P.3d 736 (“Statutory

construction is a matter of law we review de novo.” (internal quotation marks and citation

omitted)); Cable v. Wells Fargo Bank N.M., N.A., 2010-NMSC-017, ¶¶ 9-10, 148 N.M. 127,

231 P.3d 108 (stating that, where the facts are undisputed, we review “the interpretation of

trust language and the application of statutes to the trust and its terms” de novo).

I. Whether the Trust Was Revoked

{10} As his first point, Barlow argues that the will did not become effective until the

settlor’s death, and therefore, at the time the will was admitted to probate, the trust was

irrevocable. Thus, according to Barlow, the terms of the trust controlled the appointment

of the successor trustee and the distribution of trust property. Barlow argues that, as a

consequence, he must be appointed successor trustee and that he is entitled to distribution

of trust property.

{11} Barlow argues that the terms of revocation in the trust provided an exclusive,

meaning sole, method of revocation, that this exclusive method of revocation must be strictly

adhered to, and that the court had no statutory or other basis on which to hold that the will

revoked the trust. See Oldham, 2011-NMSC-007, ¶ 15 (stating that the appellate courts

“must honor legislative intent that wills and trusts be revoked in strict accordance with the

statutory methods and formalities established by the [Uniform Probate Code] and the

[Uniform Trust Code]” and that “[r]evocation of wills and trusts is governed by mandatory

statutes”); Gushwa v. Hunt, 2008-NMSC-064, ¶ 15, 145 N.M. 286, 197 P.3d 1 (stating that

the “Probate Code requires an exacting attention to form as well as intent to validate a

revocation”). Barlow faults the district court for determining that Section 5.1 of the trust did

not expressly state that its requirements were the exclusive means by which the trust could

be revoked and for failing to focus solely on whether the will substantially complied with

the exclusive method of revocation required by the trust.

{12} In addition, according to Barlow, under Section 5.1 of the trust, the trust “could only
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be revoked during [the settlor’s] lifetime by a duly executed instrument[,]” and the trust was

not revoked during his lifetime because the will did not become effective until his death,

after which time the trust was already irrevocable. In support of this argument, Barlow cites

New Mexico authority indicating that a will is not effective to revoke a trust upon the death

of the grantor-testator. See Oldham, 2011-NMSC-007, ¶¶ 21-22 (disagreeing with an

argument that a marital property judgment could act to revoke a will and trust posthumously

because the will and trust became irrevocable when the grantor/testator died). And he cites

foreign authorities for the proposition that if the grantor reserves a power to revoke his trust

only by a transaction inter vivos (while he is alive), such as by a notice to the trustee, he

cannot revoke the trust by his will. See In re Estate of Lindstrom, 191 Cal. App. 3d 375, 385

(Ct. App. 1987) (relying on the Restatement (Second) of Trusts § 330 cmt. j (1959) for the

proposition that when the settlor of a trust reserves a power to revoke the trust only in a

particular manner, the trust may be revoked only in that manner; thus, for example, a trust

provision permitting revocation by a transaction inter vivos, precludes a revocation by a

will); Merchants Nat’l Bank v. Weinold, 160 N.E.2d 174, 177 (Ill. App. Ct. 1959) (relying

on the Restatement (First) of Trusts § 330 cmt. j (1935) for the same); One Valley Bank, N.A.

v. Hunt, 516 S.E.2d 516, 520 (W.Va. 1999) (same); see also Brown v. Int’l Trust Co., 278

P.2d 581, 583 (Colo. 1954) (en banc) (relying on the proposition that where a trust provision

permits revocation or amendment “only during the lifetime of” the settlor, a revocation in

a will that takes effect after the settlor’s death does not revoke or amend the trust provisions

(internal quotation marks and citation omitted)). 

{13} Olguin pits the critical importance of the settlor’s intent against Barlow’s arguments,

stating that the terms of the trust and later amendments indicate the settlor’s intent to revoke

the trust and to leave the trust assets to the heirs of his estate. Olguin points to Oldham’s

language that “[a] settlor can revoke or amend a revocable trust by complying with a method

of revocation provided in the terms of the trust.” 2011-NMSC-007, ¶ 18 (internal quotation

marks and citation omitted). And he draws on Cable in which our Supreme Court stated

that, under the Uniform Trust Code, “the phrase ‘terms of [a] trust’ is defined as ‘the

manifestation of the settlor’s intent regarding a trust’s provisions as expressed in the trust

instrument or as may be established by other evidence that would be admissible in a judicial

proceeding.’ ” 2010-NMSC-017, ¶ 12 (quoting NMSA 1978, § 46A-1-103(R) (2007) of the

Uniform Trust Code). Olguin also points to “the basic principle that in construing the

provisions of wills and trust instruments, the court must attempt to ascertain and give effect

to the [settlor’s] intent.” Cable, 2010-NMSC-017, ¶ 11 (alteration, internal quotation marks,

and citation omitted).

{14} In construing Section 46A-6-602(C)(2) and Section 5.1 of the trust, Olguin contends

that the settlor “was free to amend or revoke his trust at any time, by a duly executed

instrument signed by [him] and delivered to the trustee without consent of any other person”

and that the trust “does not expressly establish that this is the exclusive means by which the

trust could be revoked.” Thus, according to Olguin, a will that specifically mentions and

revokes the trust “substantially conforms to both the express method of revocation contained

in the trust document” and Section 46A-6-602(C)(2)(a)’s permitted method of “a later will
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. . . that expressly refers to the trust[.]”

{15} Olguin distinguishes Barlow’s New Mexico authority, showing that Oldham and

Gushwa are factually distinguishable, primarily because Oldham involved a divorce and its

effect on a will and trust, and Gushwa involved only revocation of a will and not a trust and

did not involve the Uniform Trust Code. As to Barlow’s foreign authority, Olguin shows

that Lindstrom and One Valley Bank were based on significantly different statutory law and

that Merchants National Bank and One Valley Bank did not involve a will that specifically

referred to revocation of a specific trust.

{16} We agree with Olguin and with the district court’s application of Section 46A-6-

602(C)(2) under these circumstances. The terms of the settlor’s trust provided a method to

revoke the trust’s provisions, but that method was not expressly stated to be the exclusive

method of revocation. Thus, under Subsections (C)(1) and (2), the settlor appropriately

revoked the trust by substantial compliance with a method provided in the terms of the trust,

by the later will that expressly referred to the trust, and also by specifically devising property

that otherwise would have passed according to the terms of the trust. 

{17} Barlow’s authorities and argument to the contrary are not persuasive under the

circumstances of this case. The principle espoused in Barlow’s foreign authorities—that

where a trust provision dictates the exclusive means of amendment or revocation, no other

means will suffice to amend or revoke a trust—comports with Section 46A-6-602(C)(2). See

id. (stating that the subsection only applies where “the method provided in the terms [of the

trust] is not expressly made exclusive”). Thus, we need not look further than New Mexico

statutory law in considering this matter. Had the settlor’s trust expressly limited the means

of revocation or amendment to an inter vivos revocation, Barlow would likely have prevailed

in this matter under the theory that the settlor’s will did not become effective until the will

was probated. But the facts of this case do not warrant an application of that principle.

{18} Section 46A-6-602(C)(1) allows revocation by “substantial compliance with a

method provided in the terms of the trust[.]” Here, the will executed during the settlor’s

lifetime constituted substantial compliance with the terms of the trust. Those terms required

a duly executed instrument signed by the settlor and delivered to the trustee during the

settlor’s lifetime. Further, we do not read the exclusivity language in Section 46A-6-

602(C)(2) as rejecting compliance through a duly executed will signed by the settlor and

delivered to the trustee during the settlor’s lifetime. Additionally, the trust, specifically

Section 5.1, and the will manifest a clear intent on the settlor’s part that the trust was

revoked by the will and that Olguin take, under the will, the property formerly held in the

trust. We conclude that the district court resolved the matter correctly. See § 46A-1-103(R)

(“ ‘[T]erms of a trust’ means the manifestation of the settlor’s intent regarding a trust’s

provisions as expressed in the trust instrument or as may be established by other evidence

that would be admissible in a judicial proceeding[.]”).

II. Whether the Revocation Was Incomplete, Permitting Barlow to Claim Trust
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Property

{19} Barlow’s fall-back position, if we disagree with him in regard to whether the will was

effective to revoke the trust, is that the will only revoked trust provisions “relating to the

death of Mae Verlea Schlicht and her share in such trust agreement[,]” and thus, “[b]y its

own terms, the purported revocation only revoked provisions for the benefit of . . . Verlea.”

{20} In amendment number three to the trust, in Section 4.1.1, the settlor provided that the

remaining balance, if any, in the trust was to be distributed to Verlea. In amendment number

four, Section 4.1.2 was amended to read that if Verlea died before the complete distribution

of her share, that share or the remainder of it was to be distributed to Barlow, should Verlea

predecease the settlor. Barlow argues that because Verlea died before her share was

distributed, the revocation had no effect on the distribution of trust property and that the

alternative provision in the fourth amendment controls the distribution of trust property

favoring distinction to Barlow. That is, “[t]he purported revocation served only to

extinguish Verlea’s interests as a remainder beneficiary[,]” leaving intact Barlow’s

entitlement to distribution of trust property.

{21} We are unable to agree with Barlow. We hold that the district court properly

concluded that all provisions relating to any of Verlea’s remaining interests were revoked,

including in particular Barlow’s interest as a beneficiary. Barlow essentially conceded this

point in the district court, stating: 

[I]f the provision in the will revokes the trust, then the property, as I see it,

passes through [the settlor’s] probate estate and to the Olguins. If the will

did not revoke the trust, then Mr. Barlow is the nominated successor trustee,

he is also the sole remainder beneficiary, so the property then would pass

through the trust to Mr. Barlow.

This view of the settlor’s intent in regard to the property upon revocation of the trust is

manifestly more reasonable than that now advanced by Barlow for reversal.

CONCLUSION

{22} We affirm the district court. 

{23} IT IS SO ORDERED.

____________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:
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____________________________________

JAMES J. WECHSLER, Judge

____________________________________

LINDA M. VANZI, Judge