In re Wegener

1

In re Trust of Wegener

Randall Wegener et al., appellants, v. Robin Wegener, appellee.

No. A-22-012

Court of Appeals of Nebraska

January 17, 2023

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the County Court for Platte County: Frank J. Skorupa Judge.

Benjamin M. Wegener, of Wegener Scarborough & Lane, P.C. for appellants.

Cathy S. Trent-Vilim and Brian J. Brislen, of Lamson Dugan &amp Murray, L.L.P., for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

Welch, Judge.

INTRODUCTION

Randall, Robert, Gerald, and Mark Wegener (collectively "the Appellants") appeal from the Platte County Court's order approving two amendments to the Stephen Wegener Special Needs Trust as nonjudicial settlement agreements and declaring Robin Wegener as the trustee. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In March 2006, Emmert and Rita Wegener, the parents of Stephen Wegener, created the Stephen Wegener Special Needs Trust, an irrevocable noncharitable trust (hereinafter referred to as the "Special Needs Trust"), which was established to provide for Stephen's special needs. The Special Needs Trust appointed Emmert and Rita as trustees and appointed Stephen's brothers, Gerald, Robert, Randall, Richard, and Mark as successor trustees and beneficiaries upon Stephen's death. Rita passed away shortly after the Special Needs Trust was established leaving Emmert as the sole trustee of the Special Needs Trust. After Rita's death, Stephen's needs increased and Richard and his wife, Robin Wegener, increased their role as caretakers for Stephen.

In January 2008, Emmert, in his capacity as the settlor and trustee of the Special Needs Trust and as personal representative of Rita's estate, executed an amendment to the Special Needs Trust (Amendment I) appointing Richard as successor trustee and the Appellants as second successor trustees. Amendment I recited, in part, that the amendment was being made because, since Rita's death, "Richard . . . has been the primary family member to assist with the needs of his brother, Stephen Wegener." Emmert signed Amendment I but did not obtain signatures of all of the interested parties of the Special Needs Trust.

In September 2010, Emmert resigned as trustee and Richard executed an acceptance of appointment as successor trustee. The following month, Emmert, acting in his capacity as settlor, and Richard, acting in his capacity as trustee, executed a second amendment to the Special Needs Trust (Amendment II) appointing Richard as the trustee; naming Richard's wife, Robin, as successor trustee; and naming the Appellants as second successor trustees. Amendment II recited, in part, that the amendment was being made for the reason that, "[s]ince before and after the resignation of Emmert . . ., Richard Wegener's spouse Robin Wegener has handled much of the assistance involving Stephen Wegener." Except for Emmert and Richard, no other interested parties signed Amendment II.

In October 2015, Emmert passed away. In December 2016, the parties entered into a Family Settlement Agreement to finalize Emmert's estate. The Family Settlement Agreement modified Emmert and Rita's trusts to equally distribute the assets of those trusts to the six beneficiaries: Gerald, Stephen, Robert, Randall, Richard, and Mark, with Stephen's share of the assets to be placed in the Special Needs Trust. Paragraph 3 of the Family Settlement Agreement provided:

Richard Wegener is the Successor Trustee of The Stephen Wegener Special Needs Trust dated March 16, 2006, and amended January 18, 2008[,] and October 22, 2010, respectively. The originals of such Trust, and such Amendments, will be submitted to the Court with the Petition for Trust Administration in a separate proceeding.

Paragraph 7H of the Family Settlement Agreement provided:

The parties understand and agree that the terms of this Family Settlement Agreement shall not be binding and revocable until an Order has been issued by a Court of Competent jurisdiction, approving the modification of both the Emmert P. Wegener Revocable Trust and [t]he Rita M. Wegener Revocable Trust, and an Order authorizing the Trustee of The Stephen Wegener Special Needs Trust to enter into and agree to the terms of this Family settlement Agreement.

Additionally, the Family Settlement Agreement included the following "CONSENT":

Comes now Gerald Wegener, Robert Wegener, Randall Wegener, Richard Wegener and Mark Wegener, the only beneficiaries of any remainder interest upon the death of Stephen Wegener in The Stephen Wegener Special Needs Trust dated March 16, 2006, and amended January 18, 2008, and October 22, 2010, respectively, and hereby consent to a Court of competent jurisdiction entering an Order, without further notice and hearing, authorizing Richard Wegener, as Trustee of the Stephen Wegener Special Needs Trust, as amended, to agree to and sign, on behalf of The Stephen Wegener Special Needs Trust, as amended, the foregoing and attached Family Settlement Agreement.

Gerald, Robert, Randall, Richard, and Mark all signed the Family Settlement Agreement. The Family Settlement Agreement was approved by the court in an order issued on December 21, 2016, in which the court ordered a distribution of assets, including real property from Emmert and Rita's trusts, in accordance with the terms contained in the Family Settlement Agreement.

Richard passed away in May 2021 and was survived by Robin and his two children. Upon Richard's death, Robin began acting as trustee of the Special Needs Trust pursuant to Amendment II. In September, in response to Robin acting as trustee of the Special Needs Trust, the Appellants filed a petition pursuant to Neb. Rev. Stat. § 30-3836(b) (Reissue 2016) to modify the Special Needs Trust to appoint Robert and Randall Wegener as its cotrustees. In furtherance of this request, the petition alleged that there was no proceeding commenced to approve Amendments I and II to the Special Needs Trust and the Appellants did not consent to Amendments I and II to the Special Needs Trust as required by Neb. Rev. Stat. §§ 30-3836(b) and 30-3837 (Reissue 2016). Robin objected to the petition and filed a cross-petition requesting that the court enter an order pursuant to Neb. Rev. Stat. § 30-3811 (Reissue 2016) approving Amendments I and II to the Special Needs Trust as nonjudicial settlement agreements and enter a declaratory judgment that she was the trustee, or in the alternative, modify the trust pursuant to Neb. Rev. Stat. § 30-3838(a) and (b) (Reissue 2016) by appointing her as the trustee.

The trial was held in December 2021. The court received into evidence several exhibits including the 2006 Special Needs Trust document, Amendments I and II, and the Family Settlement Agreement. During the trial, Robert testified that he was unaware of Amendments I and II to the Special Needs Trust until 2021. Although he acknowledged that Richard acted as trustee of the Special Needs Trust after Emmert's death in 2015, he believed that Richard was acting pursuant to the initial terms of the Special Needs Trust. He further testified that he signed the Family Settlement Agreement, that it referred to Amendments I and II, and that he was represented by counsel at the time that he signed the Family Settlement Agreement. He further testified that he had the opportunity to review the Family Settlement Agreement, but he did not do so. He also testified that he was Steven's financial power of attorney and "it would sure be a lot easier if we had control of his Trust if we need money instead of having to go and ask for it all the time." Randall testified that his testimony would be "the same or substantially the same" as Robert's testimony and that the purpose of the Family Settlement agreement was to dispose of the assets in Emmert and Rita's trusts. The parties stipulated that if Gerald and Mark were called as witnesses, their testimony would be substantially the same as Robert's testimony.

Following the December 2021 trial, the county court entered an order stating: In December, [sic] 2016, Gerald, Robert, Randall, Richard and Mark all signed a Family Settlement Agreement regarding . . . Rita's Trust and Emmert's Trust. Gerald, Robert, Randall, Richard and Mark all acknowledged that Stephen's Trust had been amended on January 18, 2008 (Amendment I) and October 22, 2010 (Amendment II). They further state that "The originals of such Trust and such Amendments will be submitted to the Court with the Petition for Trust Administration in a separate proceeding." Clearly, the intent of all the parties was that the Trust would be registered and that the Amendments be approved. The court believes there is an obligation to give effect to the settlor's intentions particularly when all other interested parties are aware of those intentions and all other interested parties indicate their desire to carry out their father's intentions.

It is important to note that the Amendments do not change the substantive terms of Stephen's Trust nor does approval of Amendment I and Amendment II affect the ultimate purpose of the trust, since the successor trustee is still governed by its terms and condition.

. . . .

The court, therefore, approves Amendments I & II to the Stephen Wegener Special Needs Trust as non-judicial settlement agreements. The court finds that Robin Wegener is the current trustee of the Stephen Wegener Special Needs Trust and is empowered and authorized to act as Trustee.

The Appellants have now appealed from that order.

ASSIGNMENTS OF ERROR

The Appellants contend that the county court...