In 1997, the decedent, Kathleen Boyer, executed a Last Will and Testament and a revocable trust. In the will, she directed that her residuary estate “pour over” into the revocable trust upon her death. She named herself as trustee of the revocable trust and, although she retained complete control of the trust assets during her lifetime, she directed that the corpus of the trust be divided equally among her children upon her death.

In 2008, she executed a revocable deed of trust, deeding her Franklinville real property to her son Richard. The deed also provided that, upon her death, the revocable trust would be dissolved and complete title to the property would vest in Richard.

In 2011, she executed another deed, this time transferring the Franklinville property outright to Richard, but retaining a life estate.

Ms. Boyer died in 2013. Her two sons, who had been named as co-executors of her will, probated the will later that year.

Almost a year later, Ms. Boyer’s daughter Kathleen filed an Order to Show Cause seeking to set aside the 2008 and 2011 deeds, and ordering the parties to create a new deed dividing the property equally among Ms. Boyer’s children.

The Chancery Division refused to issue the Order to Show Cause, and Kathleen appealed. On appeal, the Appellate Division affirmed the Chancery Division.

The appellate court noted that, unless a will expressly provides otherwise, a will passes all property owned by the decedent at the time of death. Kathleen’s primary argument was based upon a 1928 chancery court case, Hamilton Trust Co. v. Bamford, 102 N.J. Eq. 454 (Ch. 1928), aff’d, 105 N.J. Eq. 249 (E. & A. 1929), which held, “If a trust has been once perfectly created, with an intelligent comprehension of the nature of the act, it is irrevocable, even though it be voluntary; and the subsequent acts of the settlor or the trustee cannot affect it.” However, the Boyer case was distinguishable from the 1928 Hamilton Trust case in two critical respects: first, unlike the trust in Hamilton Trust, Ms. Boyer’s trust was revocable; second, Mrs. Boyer’s “subsequent act” was not a subsequent will, as in Hamilton Trust; instead, her “subsequent act” was comprised of two valid deeds that transferred the Franklinville property prior to Ms. Boyer’s death.

For these reasons, the Appellate Division concluded that “Kathleen has no legal basis to disrupt decedent’s transfer of her real property years before her death to her son Richard.”

A copy of In re Estate of Boyer can be found here – In the Matter of the Estate of Kathleen Boyer, Deceased