Briggs v. Wyoming National Bank of Casper

MACY, Justice.

William G. Briggs commenced a declaratory judgment action to declare the trust agreement of his deceased wife, Eva G. Topping Briggs, invalid, to include the trust assets in her probate estate, and to declare the rights of the beneficiaries under her trust agreement and will. The court entered a summary judgment for the trustee and the beneficiaries of the trust (the Family Share Beneficiaries), declaring that the trust agreement was valid and that the trust provisions were enforceable with the exception of the “no contest” clause.

We affirm in part and reverse in part.

Mr. Briggs raises the following issues for review on direct appeal:

A. The Eva G. Briggs Living Trust violates the elective share provisions of W.S. § 2-5-101 et seq.

B. The Eva G. Briggs Living Trust is testamentary in nature and is invalid for failure to meet the statutory requirements of a will.

C. The Eva G. Briggs Living Trust is void as an illusory transfer of property.

D. The Eva G. Briggs Living Trust is fraudulent and void as a violation of public policy.

Wyoming National Bank of Casper, now known as Norwest Bank Wyoming Casper, N.A., trustee of the living trust, generally states that the issue presented for review in this appeal is:

Whether the court below was correct in granting summary judgment in favor of [the trustee and the Family Share Beneficiaries] and decreeing the validity of the Eva G. Topping Briggs Living Trust based upon its dual findings that there is no genuine issue of material fact and that [the trustee and the Family Share Beneficiaries] are entitled to judgment as a matter of law.

The Family Share Beneficiaries maintain that the following issues are ripe for review on direct appeal:

Are [the trustee and the Family Share Beneficiaries] entitled to summary judgment that the trust in question is valid and enforceable under Wyoming law where there are no genuine issues of material fact in evidence?

Does the Eva G. Topping Briggs Living Trust violate Wyoming’s elective share provisions?

Does the Eva G. Topping Briggs Living Trust constitute a testamentary document?

Does the Eva G. Topping Briggs Living Trust constitute an illusory transfer of property?

Does the Eva G. Topping Briggs Living Trust work a fraud on the rights of [Mr. Briggs] and thus violate Wyoming’s public policy[?]

Has [Mr. Briggs] effectively ... waived any right that he may have to contest the validity of the Eva G. Briggs Living Trust by his express written consent thereto?

Is [Mr. Briggs] estopped by his actions from contesting the validity of the Eva G. Topping Briggs Living Trust?

The Family Share Beneficiaries raise the following issue on cross-appeal:

Did the district court commit reversible error after it refused, on public policy grounds, to enforce the no-contest provisions of the trust agreement when no issues of material fact existed?

No genuine issues of material fact exist. Mr. Briggs and Mrs. Briggs were married to each other for approximately twenty years during their later years in life. Mr. Briggs had four children from a previous marriage. Mrs. Briggs had no children of her own. After their marriage, the Briggs-es each maintained separate ownership of the property they had acquired before their marriage and kept their accounts, holdings, and income separate from one another.

In late 1984 or early 1985, Mrs. Briggs’ attorney prepared her will, her living trust agreement, and a warranty deed to convey her real property into a trust. Under the terms of the trust Agreement, Mrs. Briggs named herself as the principal trustee and retained the right to receive the income and principal of the trust as she deemed appropriate, as well as the right to alter, amend, or revoke the trust agreement during her lifetime. The trust agreement provided that Mr. Briggs would receive a one-seventeenth share of the “Family Share” assets. The trust agreement also provided:

William G. “Bud” Briggs, for and in consideration of the gift set forth herein to him and for and in consideration of the natural love and affection for his wife, Eva Topping Briggs, Settlor herein, hereby joins in the establishment of this trust for the purpose of waiving any and all right he may have to contest the establishment of the trust or the transfer of any property of his wife as Set-tlor to the trust.

(Emphasis added.) The only provision made for Mr. Briggs pursuant to the terms of Mrs. Briggs' will was the gift of minor household furniture, goods, and appliances. The gross value of Mrs. Briggs’ living trust and the probate estate was approximately $900,000. Mr. Briggs filed a petition to take his elective share of the estate.

Both Mr. Briggs and Mrs. Briggs signed the agreement creating the living trust. Before he signed, Mr. Briggs was advised and encouraged by Mrs. Briggs and her attorney to see his own attorney to review the agreement and the proposal. Mr. Briggs affirmatively stated that he did not want to see another attorney and that he consented to whatever Mrs. Briggs desired to do, and he voluntarily signed the agreement and the deed. Mr. Briggs now states that he did not read or understand the documents, that he signed them without being advised of the consequences of his signature, but that he was assured Mrs. Briggs was leaving everything to him.

Waiver

The Family Share Beneficiaries contend that Mr. Briggs’ written and signed waiver of his right to contest the establishment of, and the transfer of the property into, the trust was a valid and enforceable waiver. We agree.

We stated in Ranger Insurance Company v. Cates, 501 P.2d 1255 (Wyo.1972), that a waiver must be manifested in some unequivocal manner. The unrefuted evidence is that, before Mr. Briggs signed the written waiver, Mrs. Briggs and her attorney recommended to him that he review the contents of the trust agreement with another attorney. Mr. Briggs did not equivocate. He affirmatively stated that he did not want to see another attorney and that he consented to whatever Mrs. Briggs desired to do. Mr. Briggs voluntarily signed the document. He cannot now effectively complain that he did not understand what he was doing because he did not read the agreement or have the advice of an attorney. In Wyoming:

“The rule is that the one who signs a paper, without reading it, if he is able to read and understand, is guilty of such negligence in failing to inform himself of its nature that he cannot be relieved from the obligation contained in the paper thus signed, unless there was something more than mere reliance upon the statements of another as to its con-tents_” Sanger v. Yellow Cab Co., Inc., Mo.1972, 486 S.W.2d 477, 481.

Laird v. Laird, 597 P.2d 463, 467 (Wyo.1979). See also First State Bank of Wheatland v. American National Bank, 808 P.2d 804 (Wyo.1991). Mr. Briggs is bound as a matter of law by the written waiver, which waiver disposes of the other issues raised by Mr. Briggs.

“No Contest” Clause

The Family Share Beneficiaries filed a counterclaim which alleged that a violation of the “no contest” clause in the trust agreement occurred and which prayed that Mr. Briggs take nothing from the trust as a result of his contest. The “no contest” clause provided in relevant part:

The assets of the Family Share shall be distributed in cash free of the obligations of this Trust equally to the following named beneficiaries, or their heirs surviving at the time of distribution, provided that if any of the following named beneficiaries shall contest the establishment of this trust or take any legal action to set aside or challenge this trust and/or the distribution of income set forth herein, then the gift to him or her shall fail and his or her share shall be distributed amongst the remaining beneficiaries who have not challenged or attempted to contest or set aside this trust, my Will or the distribution set forth here-⅜]

The court entered its order, dismissing the counterclaim on the basis of its finding that the enforcement of the “no contest” clause would violate public policy. This cross-appeal is taken from that order. The Family Share Beneficiaries contend that the “no contest” clause did not violate public policy and should be strictly enforced to fulfill Mrs. Briggs’ unambiguous intentions.

In Dainton v. Watson, 658 P.2d 79 (Wyo.1983), we joined the majority of other states by upholding the validity of a “no contest” clause even though the contest was made in good faith and with probable cause. Mr. Briggs does not question the holding in Dainton. He maintains that we must go one step further and join the majority of other states which refuse to uphold a “no contest” clause if the challenged provision is in contravention of the law. Mr. Briggs contends that Mrs. Briggs’ trust agreement was invalid because it violated Wyoming's elective share statute and that he should have been able to contest whether he could be cut out of his elective share via use of a trust without fear of reprisal under a “no contest” clause. He reasons that he would not violate a “no contest” clause by claiming his elective share contrary to the terms of Mrs. Briggs’ will, so he should be able to likewise challenge the trust agreement.

We are unable to agree with Mr. Briggs that the trust agreement violated Wyoming’s elective share statute. The law is quite to the contrary. Wyo.Stat. § 2-5-102 (1980) specifically provides in part:

The right of election of a surviving spouse ... may be waived ... by a written [waiver and, ujnless [the waiver] provides to the contrary a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse ... is a waiver of all rights to elective share....

The waiver contained in the trust agreement satisfied this statute. Dainton is controlling. The unambiguous expressed intent of Mrs. Briggs must govern. The trust agreement clearly stated that anyone who challenged the trust would lose his or her share.

It is neither necessary nor proper for this Court to decide in this case whether or not we will enforce a “no contest” clause if a challenged provision in a trust agreement is in violation of the law. Although this question may properly be before us in the future, an opinion rendered in this instance would clearly be advisory. This Court has repeatedly said that it will not issue advisory opinions, and we decline to do so now. Brad Ragan Tire Company v. Gearhart Industries, 744 P.2d 1125, 1126 (Wyo.1987); State Board of Equalization v. Jackson Hole Ski Corporation, 745 P.2d 58, 59 (Wyo.1987).

Mrs. Briggs’ trust agreement was valid, and its provisions were enforceable, including the “no contest” clause.

Affirmed in part, reversed in part, and remanded for entry of a judgment in favor of the Family Share Beneficiaries in accordance with this opinion.

THOMAS, J., files a specially concurring opinion.

URBIGKIT, C.J., files a dissenting opinion.