### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00257- CV 1

In the Matte r of the Estate of Vaughn Kuyam jian, a/k/a Vahan Kuyam jian

F ROM CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 16- 0085 -P , H ONO RAB LE DAVID GLICK LER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Debor ah L loy d Kuy amjian appea ls the trial court’s final judgme nt deny ing her motion for summary judgme nt on her decla ratory -judg ment claim and rende ring judgme nt that

cer tain rea l proper

ty was remove d from the Vaha n Kuy amjian Revoca

ble Trust (the Trust) and is part of the probate estate of Vaha n Kuy amjian (De cede nt) and should pass acc ording to his probate d will. The issue befor e us is whether a will that bequeaths rea l proper ty that is held in a revoc able trus t functions to revoke that trust or remove the rea l proper ty from it when the will does not mention the
trust or expressly revoke it. For the following rea sons, we will reve rse the trial court’s judgme nt and rende r judgme nt that the rea l proper ty at issue rema ined an asset of the Trust upon Dec edent’ s death,

The notice of appea l in this case was orig inally filed in this Court on September 8, 2016. 1 The Supreme Court of Texas order ed the case transfe rre d to the Eig hth Court of Appea ls, pursuant to its docket- equalization authority

. See Tex. Gov’t Code § 73.0 0 1; Misc. Docke t No. 16-9040. This Court transfer

red the case to our si ster court on September 28, 2016. On April 12, 2018, the Supreme Court of Texas order ed this case —along with 38 other case s that had also been previously transfe rre d to the Eig hth Court but had not rea ched final dispositi on—transfe rre d back to this Court. See Misc. Docke t No. 18-9054. The Eig hth Court of Appea ls transfe rre d the case back to this Court on April 16, 2018.is not an asset of Decede nt’s probate estate, and was proper l y d i s tributed pursuant to the t erms of

the Trust. BACK GR OUND 2

Appellant is the sister-in-law of Dec edent. App el l ees are four neig hbors (the Neig hbors) of Dec edent. I n 2011 Dec edent (a) cre ated the Trust t o hold his rea l proper ty and financ ial and other valuable assets during his life an d t o d i s p o se of them at death “outside of the probate proce ss” and (b) deede d his interest in his home in southwest Austin (the Residence ) to the Trust. At the time the Trust was cre ated, the Dec edent was not marrie d, did not have children, and lived with his brother, Gera rd Kuy amjian (Gerar d) i n the R esidenc e. Ger ard also cre ated his own

revoc able trust in 2011, such that Ger ard and Dec edent left all of their assets to eac h other upon their
respe ctive deaths, with desig nated char ities as the conting ent benef iciarie s. Upon Ger ard’ s death in 2012, and pursuant to the terms of his revoc able trust, his interest in the residenc e was convey ed to the Trust so that 100% of the Residence was then titled in the name of the Tr ust. I n 2013 Dec edent amende d his Trust ag ree ment to update the benef iciarie s to provide that, upon his de ath, ever

y thing was to pa ss to his other brother, Stephen G. Kuy amjian (Stephen),

or if he wer e then not living, to Appellant (Stephen’s wife)

. Stephen died in 2015, leaving Appellant

as the sole benef

iciary and succe ssor trustee of the Trust. The Trust ag ree ment provided that “While
trustor [i .e., Dec edent] is living, trustor shall have the rig ht to alter, amend or revoke the [] Trust or this trust ag ree ment, in whole or in part, by written instrument signe d by trustor and delivere d to the trustee [i.e., Dec edent] or withdraw all or any part of the trust estate of the [] Trust.”

The fa cts in this section are taken fr om the trial court’ s unchalleng ed finding s of fa ct. 2 2On Fe bruar y 20, 2016, Dec edent—while i n the hospital—ex ecute d a handwr itten will (the Fe bruar

y 20 Wil l) that rea d, in its entirety :

I , Vaha n Kuy amjian, being of sound mind and body here by resc ind all previous wills. This document is my

complete a

nd total will. On this 20th day of Fe bruar y , 2016, I here by bequea

th my [R esidenc e] to [Neighbor s] Amy Dukes, Randy

Dukes, Shari B ligh, a

nd J ames B ligh. I desig nate Mr. James B ligh a s the executor of my estate. The Fidelity I ndividual acc ount

. . . i s to be bequeathed in equal parts to Nanc y Hammond Wix ted and [Appellant]. The Wells Far g o acc ount is bequeathe d to [ Appellant]. The Ba nk Vontobel, Z uri ch , S witzerland acc ount is bequeathed acc ording to the allocation sche me: 25% to [Appellant] , 25% to Nanc y

Hammond Wix ted, 25% to J ames a

nd Shari Blig h 25% to Randall and Amy Dukes. [S igne d] Vahan Kuy amjian

On Fe bruar

y 22, 2016, Dec edent executed a ty pewr itten will with the assistance of an attorney

. That wi l l “re voke[d] all Wil ls and Codicils previously made by [Decede nt] ” and was admitted i n t o probate afte r Dec edent’ s death (the Probated Wil l). Among other provisions, the Probated Wil l left the Residence to the Neig hbors: “I g ive all of my interest in the [R esidenc e] at the time of my death to [ the Neig hbors] in equal share s.” Neither of the wills makes a

ny ref ere nce to or

mention of the Trust. After

Dec edent’ s death, Appe llant declar ed herself to be successor trustee of the Trust and executed a de ed to transf

er the Residence to herself individually

. 3Whil e the administration of Dec edent’ s estate was pending , the Neig hbors filed a

petition for decla

ratory judgme nt seeking a declaration that the Residence is part of Dec edent’ s p robate estate and that the Trust was revoked in its entirety by virtue of the t wo wil ls. Appellant , who had previously filed an opposition to t h e probate of Dec edent’ s will and issuance of letters
testamentar

y as a “per son interested in the Dec edent’ s estate,” filed an orig inal answe r and
counter claim to the Neig hbors’ decla ratory -judg ment petition. Appellant’s counter claim s o ug ht judicial decla

rations t hat: the R es i d en ce i s “outside of the probate estate” ; the Trust was the “fe e simple owner of the Residence as of the day of Dec edent’ s death” ; neither of Dec edent’ s purported “[w]i lls

. . . opera ted as a revoc ation of the Trust”; Appellant (as trustee of the Trust) had the authority to convey the Residence to herse l f; and “the cloud on her title, if any , must be remove d and . . . quieted.”

The trial c ourt denied the Neig hbors’ petiti on for declar atory judgme nt. Appellant then filed a motion for summary judgme nt on h er d ecla ratory -judg ment counter claims. After a h earing , the trial court denied Appellant’s motion and rende red a final judgme nt that Dec edent’ s Residen ce “i s p art of [Decede nt’s] probate estate and should pass acc ording to his will dated Fe bruar y 22, 2016.” Appe llant appea ls the denial of he r summary -judg ment motion.

STANDARD OF REVIEW Dec lara tory judgme nts are revie wed under the s am e s tandar ds applicable to other judgme nts; thus, the denial or g rant of a decla ratory judgme nt reque sted thro u gh a t raditional motion for summary judgme nt, such as occur red here , is revie wed under traditional summary judgme nt sta

ndards. Tex. Ci v. Prac. & Rem. Code § 37.010; Lidaw i v

. Progressive Cty. Mut. Ins.
4Co. , 112 S.W .3d 725, 730 (Tex. App.—Houston [14t h Dist.] 2003, no pet.). We revie w a traditional

summary judgme nt de novo. Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). We also revie w de novo the trial court’s leg al co n cl u s ions on the construction of wills and trusts. See Gamboa v. Gamboa , 383 S.W .3d 263, 273 (Tex. App.—San An tonio 2012,

no pet.) (trusts); Spiegel v. KLRU Endowment Fund , 228 S.W .3d 237, 241 (Te x . Ap p . — Au stin 2007, pet. denied) (wills). When we construe a will, we focus on the testator’s intent. San Antonio Area Found. v. Lang , 35 S.W .3d 636, 639 (Tex. 2000). We asce rtain the testator’s intent f rom the lang uag e found w ithin the four cor ners of the wil l. Id. The court focuse s not on what the testator intended to w rite, but on the meaning of the words actua lly used. Id. I n this lig ht, c ourts must not redr af t wills to vary or add provisions “under the g uise of construction of the lang uag e of the will” to rea ch a presumed intent. Id. (quoting Shriner’s Hosp. for Crippled Children of Tex. v. Stahl , 610 S.W .2d 147, 151 (Tex. 1980)). We simil arly asce rtain a trust g rantor’ s intent from the lang uag e contained in the trust’s four corne rs and focus on the meaning of the words actua lly used, not what the g rantor intended to write. Soefje v. Jones , 270 S.W .3d 617, 625 (Tex App.—San Antonio 2008,

no pet.). We must interpre t a trust to g ive meaning to all its provisions and to enac t the intent of the
g rantor. See Hurley v. Moody Nat’l Bank of Galveston , 98 S.W .3d 307, 310 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

5DISCUSSIO N 3
I n three rela ted issues, Appellant contends that the trial court er re d i n d eter mining that (1) the Trust was revoke d by either or both of the wills; (2) the Residence was withdrawn from the Trust prior to the date of Dec edent’ s death; and (3) the Residence is part of Dec edent’ s probate
estate a nd should pass acc ording to the Probated Will. W e ag ree with Appellant on all issues. When a valid inter vivos revoc able trust is not revoked during the lifetime of the trustor, it become s irrevoc able upon h i s d ea t h, terminates, and become s enfor cea ble by the benef iciary

. Jame

son v. Bain , 693 S.W .2d 676, 680 (Tex. App.—San Antonio 1985, no writ) (citing Cit i z ens Nat’l Bank of Breck enridge v. Allen , 575 S.W .2d 654, 658 (Tex. Civ. App.—Eastland 1978, writ ref

’d n.r.e.) ). Significa

ntly , neither of the wills (a) ref ers to the Trust, either expli citly or implicitl y , or (b) uses the word “re voke” or any other word with simil ar meaning except with respe ct
to prior wills. These fac ts alone distinguish this case from that cited by Appellee s in which lang uag e contained in a will expre

ssly revoke d a trust. See Sanderson v. Aubrey , 472 S.W .2d 286, 287 (Tex. App.—For

t Worth 1971, writ ref

’d n.r.e.) (holding that rec ital in will that inter vivos trust “is now formally revoke d” beca

me eff ective on date wi l l was signe d and “extinguished” trust so that rea l
proper ty former ly titled in trust “re v er t ed ” t o t ru stor so that she could dispose of it by will); cf. Jinkins v. Jinkins , 522 S.W .3d 771, 782–83 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (holding that wher e decede nt’s new wi l l re v o ked prior wills but did not mention trust or attempt to revoke

Whil e thi s cause was pe n d ing at the Ei g hth Court of Appeals, that court raised t he is sue 3 of Appellant’s standing sua sponte and reque sted supplemental briefing from the parties on the issue. We conclude that any discussion of the standing issue is unwar rante d beca

use Appella

n t in d is p u ta

bly h a s s ta n d in g . S e e , e . g . , T e x. Pr o p . Co d e § 1 1 5

. 0 1 1 ( a ) ( p r o v id in g th a t a ny in te r e s te d p e r s o n ma

y b r in g action conc erning trust). 6trust, dece dent did not “manife st a cle ar intent to re voke the trust”) ; Hildebrand v. Brim, Arnett &

Robinett, P.C. , No. 03-98-00656- CV, 1999 WL 603671, at *3–4 (Tex. App.—Austin Aug

. 12, 1999, pet. denied) (not desig nated for publication) (“K ey in deter mining whether a trust has been revoke d is whether the i nstrument in question ‘manife sts’ the i ntent to revoke .” (citing Runyan v. Mullins , 864 S.W .2d 785, 789 (Tex. App.—For t Worth 1993, writ denied) ); Jame son , 693 S

. W

. 2d at 681 ( h o ld in g th a

t b e c a u s e w il l “ d o e s n o t c o n ta in a d e f in it iv e ma n if e s ta ti o n to r e v o k e th e in

te r v iv o s tr

u s t, ” said trust was not re voked but re mained in forc e and be came irrevoc able upon de cede nt’s death)

.

The Trust ag ree ment here require d revoc ation to be in writing an d d elivere d to the
trustee but did not further specify any particula r revoc ation require ments. Howeve r, it is simply too g rea t a st retc h to conclude that the Febru ar y 20 Wil l’s rec ital, “I here by bequeath my [R esidenc e]
to [t he Neig hbors],” opera ted as a revoc ation of the Trust; that rec ital does not mention the Trust and does not use any word rese mbling “re voke.” The only portion of the Fe bruar y 20 Wil l that uses any 4 word with similar meaning to the word “re voke” is the first sentenc e, in w hich Dec edent wrote, “ I here by resc ind all previous wills.” I n that rec ital, as well, De cede nt did not mention t he Trust.

T h e t ri al court found the will’s use of the word “her eby ” with respe ct to bequest of t h e 4 Residence —and the absenc e of that word with respe ct to the bequests of other proper ty —signific ant. Howeve r, “her eby ” simply means “by this document,” see Here by , Black’ s Law Dictionary (9th ed. 2009); W ebster’s Third New Int’l Dictionary 1059 (2002), and we conclude that Dec edent’ s use of the word in this context is not rele vant to the analy sis. To the contra ry , Dec edent’ s use of the word

“ b e q u e a th ” is s ig n if ic a n t. S e e B e q u e a th , B la c k ’

s La w D ic ti o n a r

y ( 9 th e d

. 2 0 0 9 ) ( d e f

in in g “ b e q u e a th ” as “to g ive proper

ty (usu. persona l proper

ty ) by will”); W

ill , Black’ s Law Dictionary (9th ed. 2009) (def ining “will” as “the leg al expression of an individual’s wishes about the dispositi on of his or her proper ty afte r death” ); W

ebster’s Third New Int’l Dictionary 205 (2002) (def ining “beque ath” as “to g ive or lea

ve by will”). 7Nor did the rec ital in the Probated Wil l, “I g ive all of my interest in [t he Residence ]

at the time of my death to [t he Neig hbors],” opera te to revoke the Trust. That rec ital unequivoca lly 5 contemplates transfe r of the Residence upon death; it does not have immediate eff ect. See Gordon

v. Gordon , No. 11-14-00086- CV, 2016 WL 1274076, at *3–4 (Tex. App.—Eastland Mar. 31, 2016, pet. denied) (mem. op.) (holding that testator’s rec ital in will that will “shall overr ide any prior allocations descr ibed in trust documents” did not constitute re v ocation of trust beca use it was intended to take eff

ect upon testator’s d ea th rathe r than be immediately opera tive). L ike the Fe bruar y 20 Wil l, the Probated Wil l does not ref er to the Trust in any capa city and does not use the word “revoke ” or any

thing similar in the contex t of t he Trust or Trust proper ty

. Additionally , the

rec ord contains no evidenc e of any other writing by Dec edent revoking the Trust. We hold that the trial court e rre d in concluding that either or both of the wills opera ted to revoke the Trust. The trial court additionally conclude d that the above- rec ited lang uag e i n t h e t wo wills e vidence d Dec edent’ s “pre sent intent” to “ withdraw the [R ]esidence

. . . from the

. . . [T] rust by making an inconsistent dispositi on of th[ e] prope rt y ” an d “o pera ted in praesenti ” to “alter or amend” the Trust s o as to remove the Residence there from. See Sanderson , 472 S.W .2d at 288 (obser ving that “instrument such as the will under considera tion might have a dual char acte r, i.e. be
testamentar

y in part , b u t opera

tive I n [si c] prae senti in other parts” and that will’s rec ital that it revoke s p rior wills takes eff ect at time will is executed); see also In praesenti , Black’ s Law

Dec edent’ s bequest to the Neig hbors of the Residence in the Probated Wil l was followed 5 with this sentenc e: “I f I do not own an intere st in a residential homestea d at the time of my death, then the provisions of this Section shall be disreg arde d.” 8Dictionary (9th ed. 2009) (def ining “in prae senti” to mean “[a]t prese nt; rig ht now”)

. We hold that the trial cour

t erre d in these dete rminations as well. Whil e the Dec edent may very well have possessed a “pre sent intent” on Fe bruar y 20

or 22, 2016, to amend his Trust by removing the Residence th er ef rom , we cannot say that the lang uag e in th e t wo wi lls g ave any leg al eff ect to such intent or that Dec edent’ s written words clea rly manifested that intent. Cf. Soefje , 270 S.W .3d at 629 (noting that, wh en t ru s tor executes amendment to tr

ust, in absenc e of express lang uag e in a mendment revoking trust, amendment ca n revoke prior trust by implication when it disposes of particula r proper ty in manner inconsistent with trust’s prior dispositi on of same proper ty and that “[r]evocation by implication is disfavore d”);

see also San Antonio Area Found. , 35 S.W .3d at 639 (noting that courts will not rew rite wills to vary

o r a d d p r o v is io n s to r e a c h a “ p r e s u me d in te n t” )

. A s e xp la in e d p r e v io u s ly , th e T r u s t a g r e e me n t r e q

u ir e d amendment of the Trust to be in writing , but the on l y wr i t i n gs at i ssue here did not mention or ref er to the Trust, much less to “ame ndment” or modification there of. Ag ain, the case law cited by Appellee s in support of the trial court’s conclusions is distinguishable from the circ umstances here

.

T h e l i n e o f c a s e s a d d

r e s s in g “ in c o n s is te n t d is p o s it io n ” o f tr u s t p r o p e r ty h a v e c o n c e r n e d
actu al dispositi on of the proper ty at issue itself by the trust g rantor that—upon dispositi on— eff ectively revoke d or modified the trust as to that proper ty

. See Moon v. Lesikar , 230 S.W .3d 800, 805 (Tex. App.—Houston [14t h Dist.] 2007, pet. denied) (holding tha t g r a n to r ’ s c onvey ance of stock share s previously owned by trust to third party rev o ked trust as to that asset); Starcrest Trust v. Berry , 926 S.W .2d 343, 353 (Tex. App.—Austin 1996, no writ) (holding that g rantor’ s convey ance of trust’s principal asset—re al proper ty —in form of deed of trust to secur e g rantor’ s persona l loa n

9revoke d trust as to that asset). In contra st, here w e have no actua l disposit ion of the Residenc e by

Dec edent—i.e., he did not convey it to any one els e o r deed it back to himself from the Trust; he

mere ly bequeathed it upon his death to the Neig hbors. We d ec l i n e to expand the “inconsistent d ispositi on” line of case s in the manner advanc ed by Appellee s to include circ umstance s b ey o n d
actua l dispositi on of trust proper ty

. We hold that the trial court’s conclusions that either or both of the wills “ame nded” the Trust by virtue of their “inconsistent dispositi on” and that Dec edent’ s will
opera ted to remove the Residence from the Tr ust were err oneous.

CONCLUSION We reve rse the trial court’s judgme nt and rende r judgme nt that Vaha n Kuy amjian’s home at 301 Her itag e Drive, Austin, TX, 78737 is not part of Vaha n Kuy amjian’s probate estate and should not pass acc ording to his probate d will but, rathe r, was an asset of the Vaha n Kuy amjian Revoca ble Trust upon Dec edent’ s death and should pa ss a ccor ding to the provisions of said Trust.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Reverse d and Rende red Filed: Aug ust 8, 2018

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