Making Trust Documents Available Satisfies Deposit Requirement To Incorporate Trust by Reference

Gehrke v. Senkiw, 2d Dist. Case No. 26829, 2016-Ohio-2657. A trust that is incorporated by reference into a last will and testament cannot be challenged after the time that a will must be challenged passes. In this case, the beneficiary challenged a trust amendment's validity on the grounds of undue influence being exerted upon a testator, who also allegedly lacked the required capacity to execute the amendment. The lawsuit was filed within the time period to challenge a trust, but after the statute of limitations had expired to challenge the will. Because the pour-over will incorporated the trust into the will, the appellate court upheld the probate court's determination that the will most be challenged along with the trust. As such, the case's dismissal was upheld because the plaintiffs failed to challenge the will. Even though the trust was not deposited with the probate court within 30 days after the will was probated, the appellate court held that the deposit requirement was satisfied because the trust documents were made available to the plaintiffs at least 23 days before the will-contest statute of limitations expired.