Date: 08-15-2013

Case Style: Martha Louise Britton v. John Branscum

Case Number: CJ-2012-4994

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Richard L. Farris

Defendant's Attorney: Sally A. Hasenfratz and Carol E. Sorenson for Jacqueline and James Berrier

Description: Martha Louise Britton and Ernest Starr Hansberger III sued John Branscume as Trustee of the Wilhemina M. Berrier TGrust dated October 25, 1994 as amened and Helen Victoria Ferguson and Jacqueline Berrier and James Berrier and the Heirs Executors Administrators Devisees Trustees and Assigns of William F. Berrier, De4ceased, and the Unknown Successors of Ruth Berrier, Deceased claiming:

1. The Plaintiffs are two of the beneficiaries of the Trust Agreement of Wilhelmina M. Berrier Trust dated October 25, 1994, the “Trust”. The original Trust Agreement was made and executed in Oklahoma City, Oklahoma on October 25, 1994 bi and between Wilhelmina M. Berrier as Settlor and as initial Trustee. The original Trust Agreement named Wm. G. Newhouse III as Successor Trustee. A copy of the original Trust Agreement is attached hereto as Exhibit A. The Plaintiffs are informed and believe that the Trust was amended on or about July 20, 2)01 to change the beneficiaries.

2. The Defendant, John Branscum, as Trustee of the Wilhelmina M. Berrier Trust dated Ootober 25, 1994, as amended, is sometimes referred to in this Petition as “Branscum.” The Defendant, Bransoum, is the replacement Successor Trustee of the Trust by an Order of the District Court of Oklahoma County, Oklahoma filed February 20, 2007 in case number CJ—2005—560. A copy of the Order is attached hereto as Exhibit B.

3. The Settlor of the Trust, Wilhelmina M. Berrier, died on August 6, 2001. Wilhelmina M. Berrier as Settlor and as initial Trustee of the Trust is sometimes referred to in this Petition as “Mrs. Berrier.” Shortly after Mrs. Berrier’s death, Wm. G. Newhouse III filled the position as the Successor Trustee of the Trust. Wm. G. Newhouse III was an attorney licensed to practice law in Oklahoma both when he prepared the Agreement for the Trust and when he assumed the duties and obligations as Successor Trustee. According to the Oklahoma Bar Association, Wm. G. Newhouse III was suspended from the practice of law in 2003 and has not been reinstated. Wm. G. Newhouse III prepared the estate planning documents for Mrs. Berrier, including, but not limited to, the Trust, the Last Will dated July 13, 1994, and the Last Will dated July 20, 2001. A copy of the Last Will and Testament of Wilhelmina M. Berrier dated July 13, 1994 is attached hereto as Exhibit C. A copy of the Last Will and Testament of Wilhelmina M. Berrier dated July 20, 2001 is attached hereto as Exhibit D.

4. After a bequest of certain items of tangible personal property, the beneficiaries of the Trust and of the Last Will and Testament of Wilhelmina M. Berrier dated July 13, 1994 were the Plaintiffs and Helen Victoria Ferguson and William F. Berxier.

Mrs. Berrier had no children, living or deceased. Williar F. Berrier was the step—grandson of Mrs. Berrier.

5. The death of William F. Berrier occurred prior to Mrs. Berrier’s revised Last Will and Testament dated July 20, 2001. Such death was the motivating factor for Mrs. Berrier to change her beneficiaries and to remove William F. Berrier as a beneficiary from her estate plan. Evidence of Mrs. Berrier’s intention and desire to exclude William F. Berrier is four.d in her revised Last Will and Testament dated July 20, 2001. After a bequest of certain items of tangible personal property, the beneficiaries of the Last Will and Testament of Wilhelmina M. Berrier dated July 20, 2001 were the Plaintiffs and Helen Victoria Ferguson. William F. Barrier was omitted from the Last Will and Testament of Wilhelmina M. Berrier dated July 20, 2001. The Last Will and Testament of Wilhelmina M. Berrier dated July 20, 2001 contains a paragraph VIII which states in its entirety:

I have made provisions for all my heirs in this my last will and testament that I care to make provision for. Should any one feel they are inadequately provided for or are forgotten, I direct my executrix to pay you the sum of One ($1.00) Dollar.

It is standard practice in estate planning to revise both the Last Will and Revocable Living Trust in the event of a change in the beneficiaries of either one of them. The Last Will and Testament of Wilhelmina N. Berrier dated July 20, 2001 reflects changes that would have been duplicated in her amended Trust.

6. The original Last Will and Testament of WilhelmLna M. Berrier dated July 20, 2001 was duly presented for probate in the District Court of Oklahoma County, Oklahoma case number PB-2005- 954. The Inheritance Tax to the Oklahoma Tax Commission of the State of Oklahoma has been paid in full and the Tax Commission has filed its Order Releasing Taxable Estate. A copy of the Oklahoma Tax Commission Order Releasing Taxable Estate filed May 20, 2009 in case number P8—2005—954 is attached as Exhibit E. The estate of Wilhelmina M. Berrier was not of sufficient size or income to be liable for Federal inheritance taxes.

7. At the time of his death, William F. Berrier was married to Ruth Berrier. Ruth Berrier is now deceased. William F. Berrier and Ruth Berrier had two children, Jacqueline Berrier and James Berrier and no other children, living or deceased.

8. The Plaintiffs believe and allege that Mrs. Berrier intended to benefit only living persons in her Trust and estate plan such that William F. Berrier was removed as a beneficiary of the Trust by amendment of the Trust on or about July 20, 2001. The Plaintiffs have not been able to locate a copy of the amendment of the Trust. The determination and declaratory judgment that the Trust was amended on or about July 20, 2001 will not defeat a material purpose of the Trust, but rather will serve to carry out the intent of Mrs. Berrier in amendinq the Trust to provide benefits for her then living residuary beneficiaries.

9. Wm. G. Newhouse III, as Successor Trustee, took control of the Trust and assets of the Trust on or about August , 2001 as a result of the death of Wilhelmina M. Berrier on August 6, 2001.

10. The amendment of the Trust is confirmed by the actions of Wm. G. Newhouse III, as Successor Trustee. The beneficiaries of the amended Trust resulting from Mrs. Berrier’s death on August 6, 2001 are:

Ernest Starr Hansberger, III 35%

Martha Louise Britton 35%

Helen Victoria Ferguson 30%

Total

100%

10.1 Wm. G. Newhouse III, as Successor Trustee, generally identified the assets of the Trust in his letter dated August 8, 2001. A copy of the letter of Wm. G. Newhouse III is attached hereto as Exhibit F. The letter was directed to the Plaintiffs and Helen Victoria Ferguson as the only beneficiaries of the Trust.

10.2 Wm. C. Newhouse III, as Successor Trustee of the Trust, prepared and delivered an Initial Distribution (attached hereto as Exhibit G) dated September 11, 2003 showing the Plaintiffs and Helen Victoria Ferguson as the only beneficiaries of the Trust, as it was amended on or about July 20, 2001 and showing their proportionate shares, being: 35% to Martha Louzse Britton, 35% to Ernest Starr Hansberger, III and 30% to Helen Victoria Ferguson.

10.3 Attached to this Petition as Exhibit C are a copy of the Initial Distribution prepared by Wm. G. Newhouse III as Successor Trustee and a copy of one of the distribution checks. The Successor Trustee did not list William F. Berrier as one of the beneficiaries of the Trust and William F. Berrier did not receive a distribution as a result of the Initial Distribition from the Trust.

WHEREFORE, Plaintiffs pray for the determination of the rights and legal relations of the Trustee and the beneficiaries of the Wilhelmina N. Berrier Trust dated October 25, 1994, as amended; for determination and declaratory judgment that the Trust was amended on or about July 20, 2001 resulting in the primary beneficiaries (after the distribution of certain named items of tangible personal property) being the Plaintiffs and Helen Victoria Ferguson; for determination and declaratory judgment that John Branscum, the replacement Successor Trustee, should conclude the Trust, as amended, and distribute the remaining assets of the Trust (after deduction for costs, expenses and trustee fees) as follows: 35% to Martha Louise Britton, 35% to Ernest Starr Hansberger, III and 30% to Helen Victoria Ferguson; and for any other relief the Court may deem just and equitable.

Defendants appeared and answered as follows:

1. Defendants admit that the original Trust Agreement of Wilhelmina M. Berrier Trust dated October 25, 1994 (the “Trust”), speaks for itself and that such terms appear to name the Plaintiffs as two (2) of the beneficiaries. Defendants are without sufficient information or knowledge to admit or deny the allegations involving the execution or subsequent amendment of the Trust, and therefore, said allegations are deemed denied.

2. Defendants concede that the Order of the District Court of Oklahoma County, Oklahoma entered on February 20, 2007, in case number CJ-2005-5760, speaks for itself and appears to appoint John Branscum as the replacement Successor Trustee of the Trust.

3. Defendants concede that Wilhelmina M. Berrier died on or about August 6, 2001. Other than the documents referenced and attached as Exhibits to the Petition, Defendants have no other independent knowledge or information sufficient to form a belief as to the truth of the remaining statements of Paragraph 3. Such allegations are therefore deemed denied and the Defendants demand strict proof thereof.

4. Defendants concede that Exhibit “A” to the Petition speaks for itself with respect to the therein named beneficiaries of the residue of the Trust estate. However, the Defendants are without sufficient knowledge to form belief as to the authenticity or validity of the Trust Agreement attached as Exhibit “A” to the Petition.

5. To the Defendants’ knowledge and belief, William F. Berrier predeceased Wilhelmina M. Berrier. The Defendants concede that the Last Will and Testament of Wilhelmina M. Berrier dated July 20, 2001 (the “Will”), that was admitted to probate in the District Court of Oklahoma County, Oklahoma case number PB-2005-954, named only Ernest Starr Hansberger, III, Martha Louise Britton and Helen Victoria Ferguson as beneficiaries of Wilhelmina M. Berrier’s estate. The Defendants have no independent knowledge or information to form a belief as to the truth of the remaining statements of Paragraph 5, and therefore the remaining statements are deemed denied.

6. The Defendants concede that the Will was admitted to probate in the District Court of Oklahoma County as referenced above. The Order Releasing Taxable Estate filed in such probate matter as referenced in Paragraph 6 is a matter of record and is not disputed.

7. The Defendants deny that William F. Berrier was married to Ruth Berrier. To Defendants’ knowledge and belief, Ruth Berrier was William F. Berrier’s mother and William F. Berrier was not married at the time of his death. Defendants admit that William F. Berrier had two (2) children, Jacqueline Berrier and James Berrier. To Defendants’ knowledge and belief, William F. Berrier had no other children, living or deceased.

8. In answer to Paragraphs 8 through 10 and subparagraphs 10.1 through 10.3, the Defendants have no independent knowledge or information sufficient to form a belief as to the allegations involving the existence of an amendment to the original Trust Agreement, or with respect to Wilhelmina M. Berrier’s testamentary intent, other than as stated in the original Trust Agreement and the Will. Therefore, all such allegations are therefore deemed denied. Having fully answered each of the allegations and statements set forth in Plaintiffs Petition, Defendants agree that the respective interests of the named parties in and to the Trust should be determined by the Court.

WHEREFORE, the Defendants respectfully pray that each and all of the relief sought by the Plaintiffs in the original Petition be denied; that the Defendants be provided with a full Inventory and Accounting of the assets and distributions made from the Trust; that the Court set this matter for hearing, and upon hearing the same, make a final determination and order for distribution of the parties’ respective interests in and to the Trust, and for any and all further relief to which the Defendants may be entitled, including their reasonable attorney’s fees and costs.

Outcome: Now on this 3rd day of July, 2013, Plaintiffs, Martha Louise Britton and Ernest Starr Hansberger, III and Defendants, John Branscum, as Trustee of the Wilhelmina M. Berrier Trust dated October 25, 1994, Helen Victoria Ferguson, Jacqueline Berrier and James Berrier, are before the Court, requesting approval of an Agreed Order resolving all issues currently before the Court.

Plaintiffs appear by and through their counsel of record, Richard L. Farris. Defendants, Helen Victoria Ferguson, Jacqueline Berrier and James Berrier appear by and through their counsel of record, Matthew C. Goodin of Phillips Murrah, P.C. Defendant John Branscum, Trustee of the Wilhelmina M. Berrier Trust dated October 25, 1994, is appearing pro se.

The parties announced to the Court that an agreement and stipulation has been reached by all interested parties hereto, and request that the stipulations and agreement be adopted by the Court as its final findings and orders herein. Having reviewed the pleadings and the parties’ agreement identified below, and for consideration acknowledged by all parties the Court Finds and ORDERS as follows:

1. This Court has jurisdiction and venue is proper in the District Court of Oklahoma County, Oklahoma.

2. The parties stipulate and the Court finds that Wilhelmina M. Berrier died on or about August 6, 2001.

3. The parties stipulate and the Court finds that Martha Louise Britton, Ernest Starr Hansberger, III, Helen Victoria Ferguson and William F. Berrier (deceased) are named as residuary beneficiaries under the Trust Agreement of the Wilhelmina M. Berrier Trust, dated October 24, 1994 submitted by the Plaintiffs (the “Original Trust Agreement”).

4. The parties stipulate and the Court finds that John Branscum was appointed Successor Trustee of the Wilhelmina M. Berrier Trust by an Order of the District Court of Oklahoma County, Oklahoma filed February 20, 2007.

5. The parties stipulate and the Court finds that the Last Will and Testament of Wilhelmina M. Berrier dated July 20, 2001, (the “Will”) was admitted to probate in the District Court of Oklahoma County, Oklahoma case number PB-2005-954 and that such Will named the following as residuary beneficiaries to receive the respective percentages as listed:

Martha Louise Britton 35%

Ernest Starr Hansberger III 35%

Helen Victoria Ferguson 30%

6. The parties stipulate and the Court finds that previous distributions made by the original Successor Trustee, Wm. G. Newhouse, III, (who was also the attorney who prepared Wilhelmina M. Berrier’s Will and Trust) were made to the above named individuals as beneficiaries under the Wilhelmina M. Berrier Trust in accordance with the percentages as set forth in the Will. 7. The parties stipulate and the Court finds that the death of William F. Berrier occurred prior to Mrs. Berrier’s revised Last Will and Testament dated July 20, 2001. William F. Berrier was not married at the time of his death. William F. Berrier had two (2) children, the Defendants, Jacqueline Berrier and James Berrier. William F. Berrier had no other children, living or deceased.

8. The parties stipulate that the intent of Wilhelmina M. Berrier as evidenced by the Will dated July 20, 2001 and as confirmed by the actions of the original Successor Trustee under the Wilhelmina M. Berrier Trust was to amend the Original Trust Agreement as of the same date, wherein the residuary of the Wilhelmina M. Berrier Trust was to be distributed as follows:

Martha Louise Britton 35%

Ernest Starr Hansberger III 35%

Helen Victoria Ferguson 30%

9. Accordingly, the parties stipulate and the Court finds that the Wilhelmina M. Berrier Trust dated October 25, 1994 was amended on or about July 20, 2001 resulting in the residuary beneficiaries under the Trust being the Plaintiffs, Martha Louise Britton and Ernest Starr Hansberger, III, and Defendant, Helen Victoria Ferguson; and further that John Branscum, the Successor Trustee of the Trust, should conclude the Trust, as amended and distribute the remaining assets of the Trust (after deduction for costs, expenses and trustee’s fees) as follows:

35% to Martha Louise Britton; 35% to Ernest Starr Hansberger, III, and 30% to Helen Victoria Ferguson. Further, the parties agree that, except for the payment of their attorneys’ fees and expenses as set forth below, Jacqueline Berrier and James Berrier have no right, title, lien, estate, encumbrance, claim, assessment, demand or interest, whether at law or in equity in and to the Wilhelmina M. Berrier Trust and any purported claims of said Defendants are hereby canceled and removed.

10. The parties agree that, in accordance with the provisions of Okia. Stat. Ann. tit. 60 § 175.57, which provides that a court may award cost and expenses, as justice and equity may require, to any party in a judicial proceeding involving a trust, to be paid by another party or from the trust which is the subject of the controversy, the Wilhelmina M. Berrier Trust shall bear and pay the reasonable and necessary attorneys’ fees and expenses for Defendants, Helen Victoria Ferguson, Jacqueline Berrier and James Berrier and the Plaintiffs.

11. The Court further finds that the stipulation and agreement reached by the parties hereto and set forth above, should be and are hereby adopted as the Court’s findings and final orders herein.

IT IS THEREFORE ORDERED that agreements and stipulations set forth above are adopted by the Court as its final orders herein; that John Branscum, as Trustee of the Wilhelmina M. Berrier Trust dated October 25, 1994, shall administer the remaining assets of the Trust in a manner consistent with the Court’s findings and Orders herein, and make any and all such final distributions within thirty (30) days of the entry of this Order.

IT IS FURTHER ORDERED that the accounting of Trustee, John Branscum is approved as of September 30, 2012.

IT IS FURTHER ORDERED that John Branscum, as Trustee of the Wilhelmina M. Berrier Trust dated October 25, 1994, shall pay the reasonable and necessary attorney’s fees and expenses incurred by the Defendants, Helen Victoria Ferguson, Jacqueline Berrier and James Berrier within thirty (30) days of the entry of this Order, in the amount of $2,800.00 from the Trust.

IT IS FURTHER ORDERED that John Branscum, as Trustee of the Wilhelmina M. Berrier Trust dated October 25, 1994, shall pay the reasonable and necessary attorney’s fees and expenses incurred by the Plaintiffs, within thirty (30) days of the entry of this Order, in the amount of $27,374.25 from the Trust.

IT IS FURTHER ORDERED that John Branscum, as Trustee of the Wilhelmina M. Berrier Trust dated October 25, 1994, shall provide an accounting of all final distributions, upon request of any party hereto.

IT IS FURTHER ORDERED that the Court reserves jurisdiction to determine any remaining issues with the agreement and stipulation reached by the parties and adopted by this Court, and the administration of Wilhelmina M. Berrier Trust dated October 25, 1994, not otherwise disposed of herein.

Plaintiff's Experts:

Defendant's Experts:

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