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In re Estate of Evans

Citation. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314, 2013 WL 930603 (Neb. Ct. App. Mar. 12, 2013)
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Brief Fact Summary.

Estate Trustee (Trustee) seeks relief from a lower court order, which he claimed precluded the admission of grandchildren born after Testator Grandfather’s (Testator’s) death.

Synopsis of Rule of Law.

If a gift is to a class, and that class is fixed by the terms of the bequest that there may be an interval of time during which the class may increase, then the gift is one that vests in the existing number of the class and such other persons as thereafter become members of the class, with this interval continuing to the point of time or event that is specified and certain.


Testator established a trust for his grandchildren in his will. Testator stated that each grandchildren was to be given $50,000, held in trust, with the interest to be paid to each grandchild when each reached a certain age. After the grandchildren reached the age of 30, each was to be paid the principal on each’s respective share of the trust. Testator had six grandchildren prior to his death, four of whom were born prior to the execution of his will and two of whom were born subsequent to the execution of the will. After his death, Testator had another three grandchildren prior to the oldest grandchild reaching the age of thirty years. Having become aware of these grandchildren’s births, the Trustee sought review as to whether or not these grandchildren qualified as trust beneficiaries. The lower court determined that Testator intended to create a vested gift to a class composed of his six grandchildren living at the time of Testator’s death, subject to being reopened, with
new grandchildren to be admitted each time a grandchild reached the age of thirty years, the trust principal to be divided at each reopening. The Trustee appeals this ruling.


Did membership in the class designated by Testator close permanently when the oldest grandchild reached the age of thirty years?


Yes. Membership in the class closed permanently when the oldest grandchild reached the age of thirty years. The lower court erroneously held that membership in the class opened up each time a new grandchild was born, until such time as the entire trust corpus was distributed. This lower court is to be modified. Testator intended to create a vested gift to a certain class. Both the grandchildren living at the time of Testator’s death and the after-born grandchildren who came into being before the time of the distribution of the trust principal arrived that closed the class membership forever, were members of the class. Trustee accepted his trust duties that included carrying out the terms of the will incorporated by reference into the probate judgment. Because of this, any after-born grandchildren retained a potential interest in the estate. Any after-born children who were not represented by a guardian in Trustee’s action lacked proper notice for the probate order to bar their
claims. The lower court ordered should be modified to include those grandchildren born prior to the date on which the oldest grandchildren attained thirty years of age.


Here the Court determines that although some grandchildren may have been born after the death of Testator, Testator still intended that these children benefit from the trust so long as the oldest grandchild had not yet reached thirty years of age. Ruling in this way allowed the Court to determine that the interest was vested at that creation of the trust, even if the class was subject to open for a period of time after Testator’s death.

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