Volume 216 — Kansas Reports

SYLLABUS BY THE COURT 1. TRUSTS — <italic>Inter Vivos Revocable Trusts — Used as Will</italic> <italic>Substitutes — Law Relating to Contractual Wills — Applicable</italic> <italic>to Inter Vivos Trusts Executed Pursuant to Contract — Claim</italic> <italic>Against Estate.</italic> Where <italic>inter vivos</italic> revocable trusts executed by a husband and wife, making disposition of the major portion of their estates, are effectively used as will substitutes in an overall estate plan, the law in Kansas relating to contractual wills is applicable in determining whether such <italic>inter vivos</italic> trusts were executed pursuant to a contract, which is enforceable as a claim against the estate of the settlor breaching it. 2. WILLS — <italic>Instrument May Be Contractual and Testamentary — Will</italic> <italic>Revocable — Contract Enforceable — Revoking Contractual Will</italic> <italic>by Second Will — Enforcement.</italic> A single instrument may be both a will contractual in nature, and a contract testamentary in nature; as a will it is revocable but as a contract it is enforceable; and although a contractual will revoked by execution of a second will, cannot be probated, it may nonetheless be enforced as a contract against the estate of the testator breaching it. 3. SAME — <italic>Existence of Contract Question of Fact —</italic> <italic>Circumstantial Evidence.</italic> The existence or non-existence of an agreement or contract is in its very nature a fact. If a joint and mutual will is the result of a contract, under which the making of each will is consideration for making the other, it is necessary to establish that fact by direct or circumstantial evidence. 4. SAME — <italic>Essential Requisites to Validity and Enforcement of</italic> <italic>Contract for Execution of Wills.</italic> It is essential to the validity and enforcement of a contract for the execution of wills containing bequests and devises, which are reciprocal between the parties, that the contract be definite, certain and unequivocal as to the parties, the subject matter and the considerations. 5. SAME — <italic>Joint and Mutual Wills — Between Husband and Wife —</italic> <italic>Terms May Be Evidence Will is Contractual.</italic> Where a joint and mutual will is executed by a husband and wife the will itself and its terms may be taken into consideration as circumstantial evidence upon which to base a finding that the will is contractual. 6. SAME — <italic>Terms Showing Will Contractual — Extrinsic Evidence</italic> <italic>Not Admissible.</italic> Where a joint and mutual will shows on its face by the terms and provisions thereof that it is contractual in character, extrinsic evidence is not admissible for the purpose of proving otherwise. 7. APPEAL AND ERROR — <italic>Findings — Evidence Documentary in Form —</italic> <italic>Appellate Review.</italic> When the evidence from which the trial court's findings are made is wholly written and documentary in form, the reviewing court must decide for itself what the facts establish, substantially as it would if the case was originally in this court, for the trial court has no better opportunity<page_number>Page 660</page_number> to weigh the evidence than a court of review with the same evidence before it. 8. CONTRACTS — <italic>Ascertaining Terms of an Agreement — Written</italic> <italic>Instruments.</italic> It is a general principle of contract law that a court may ascertain the existence and terms of an agreement from a combination of written instruments and the acts of the parties in connection therewith. 9. WILLS — <italic>Provision Considered in Determining Whether Wills</italic> <italic>Contractual.</italic> A provision frequently considered by the court in determining whether joint or mutual wills are contractual, where specific reference to a prior contract is lacking, is the manner in which all of the parties' remaining property will be distributed upon the death of the survivor. 10. SAME — <italic>Determining Whether Wills Contractual — Provision for</italic> <italic>Lapsed Residuary Bequest.</italic> A provision to be considered in determining whether joint or mutual wills are made pursuant to a contract is whether there are carefully drawn provisions for the disposition of any share in case of a lapsed residuary bequest. 11. SAME — <italic>Method of Executing Trust Instruments — Evidence of</italic> <italic>Contractual Disposition.</italic> The manner in which trust instruments are executed may provide evidence that the parties were disposing of their estates pursuant to an agreement. 12. TRUSTS — <italic>Inter Vivos Revocable Trusts — Used as Will</italic> <italic>Substitutes — Trust Was Preceded by Negotiation and Agreement</italic> <italic>— As to Children and Grandchildren.</italic> Where a husband and wife execute <italic>inter vivos</italic> revocable trusts which are used as will substitutes in an overall estate plan, reciprocal provisions in the respective trusts whereby the husband makes their grandchildren the primary beneficiaries of his trust and omits their children from the trust, and the wife makes their children the primary beneficiaries of her trust and omits their grandchildren, each explaining the respective omissions in their own trust by referring to the provision made in the other's trust, are persuasive considerations indicating that the execution of the <italic>inter vivos</italic> trusts was preceded by negotiation and agreement between the settlors concerning the manner in which their children and grandchildren would be treated under the estate plan as a whole. 13. SAME — <italic>Revocable Trusts of Husband and Wife — Amendments by</italic> <italic>Settlors — Joinder and Consent Obtained — Contractual</italic> <italic>Agreement.</italic> Where a husband and wife execute <italic>inter vivos</italic> revocable trusts which are used as will substitutes in an overall estate plan, and the settlors during their lifetime make various amendments to the original trust instruments, each obtaining the "joinder" and "consent" of his or her spouse, retaining the same basic estate plan through the various amendments, a contractual agreement between the settlors is indicated on facts more particularly set forth in the opinion. 14. SAME — <italic>Inter Vivos Trusts — Reserving Rights to Amend or</italic> <italic>Revoke — Not Inconsistent With Contractual Nature.</italic> There is no inconsistency between the fact that the settlors of <italic>inter</italic> <italic>vivos</italic> trusts, used as will substitutes in an overall estate plan, expressly reserved the right to alter, amend or revoke their respective trusts, and the construction of the trust instruments as being contractual in nature.<page_number>Page 661</page_number> 15. SAME — <italic>Right to Amend or Revoke Trust — Revocable Trusts</italic> <italic>Treated Differently Than Wills.</italic> The reservation of a right of each settlor to amend or revoke his or her <italic>inter vivos</italic> trust proves nothing concerning the existence or non-existence of a contract. There is no substantial reason why revocable trusts should be treated differently than joint or mutual wills which are ambulatory and may be revoked or amended at any time before the testator's death. 16. WILLS — <italic>When Attorney Fees Allowable.</italic> Attorney's fees and expenses may not be allowed against the estate of a decedent unless authorized by statute. 17. EXECUTORS AND ADMINISTRATORS — <italic>Enforce Contract as Claim —</italic> <italic>Attorney Fees Not Chargeable Against Estate.</italic> Where an action is brought to enforce a contract as a claim against the estate of a decedent, the plaintiffs' attorney fees are not chargeable against the estate of the decedent even though they are successful in the litigation.