In re Trust of Marsha Milot - Trust Information Dispute

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. R eaders are requested to notify the Reporter of Decisions by email at: Reporter@vtcourts.gov o r by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609 -0801, of any errors in order that corrections may be made before this opinion goes to press. 2026 VT 7 No. 25- AP -061 In re Trust of Marsha Milot (Jennifer Milot, Appellant) Supreme Court On Appeal from Superior Court, Chittenden Unit, Probate Division October Term, 2025 Gregory Glennon, J. Andre D. Bouffard of Downs Rachlin Martin PLLC, Burlington, for Petitioner-Appellant. Matthew A. Zidovsky of Langrock Sperry & Wool, LLP, Burlington, for Respondent-Appellee Trust of Marsha Milot, Valerie Wiederhorn and Curtis Hennigar, as Co-Trustees. PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Corbett, Supr. J., Specially Assigned ¶ 1. REIBER, C.J. Petitioner Je nnifer Milot appea ls the denial of her petition to open a trust action to obtain information about the administ ration and assets of a revocable trust whose settlor, Marsha Milot, is still alive. Petitioner claims the probate division erred by: failing to apply the correct legal standard whe n deciding to dismiss petitioner’s action; failing to consider whether petitioner’s information requests we re “unreasonable under the circumstances” as r equired by statute; and concluding that under 14A V.S.A. § 603, co-trustees Valerie Wiederhorn and Curtis Hennigar owed no duty to provide information regarding the trust and co- trustees’ administration to petitioner. We conclude that while the trust re mains revocable, petitioner is not entitled to the

2 information she seeks under § 813 o f the Vermont Trust Code. 1 However, we hold that the probate division erred by failing to consider petitioner’s r equest to amend her complaint to seek removal of co-trustee Wiederhorn, and therefore reverse and remand for it to do so. I. Background ¶ 2. The record reflects the following. In 2009, settlor Marsha Milot created a revocable trust naming herself as trustee and lifelong beneficiary. The trust named settlor’s daughter, Valerie Wiederhorn, and s ettlor’s three stepdaughters from a former marriage, including petitioner, as equal beneficiaries of the trust aft er settlor’s death. 2 I n 2018, Wiederhorn became a co-trustee with settlor. In July 2021, settlor stepped down from her role as co -trustee and settlor’s husband, Curtis Hennigar, became co-trustee with Wiederhorn. ¶ 3. In April 2024, petiti oner filed a petition in the probate division s eek ing a copy of the trust instrument. Petitioner asse rted that as a beneficiary of th e trust, she was entitled to receive a copy of the trust along with any amendments under 14A V.S.A. § 813(b)(1). According to petitioner, co-trustees h ad improperly denied her request for a copy be cause they contended that she was not a “qualified beneficiary” under 14A V.S.A. § 813(a). By letter to the probate judge dated July 2, 2024, co-trustees answered in which they agreed that “ [p]etitioner ’s claim has me rit, ” but asked the court to hold an evidentiary hearing, make findings, and rule on the merits. ¶ 4. In July 2024, the court ordered co-trustees to file a copy of the trust, along with any amendments, in camera so the filings would not be publi c. 3 After reviewing the trust documents, the court determined p etitioner was entitled to a copy of the trust under § 813(b)(1) and unsealed 1 Section 101 of Title 14A state s that Title 14A may be cited a s “the Vermont Trust Code.” See 14A V.S.A. § 101 et seq. We will continue to cite it as such unless a specific r eference within the body of the Vermont Trust Code is warranted. 2 Petitioner’s sisters sought to intervene in the probate pro ceeding, but th e probate division denied petitioner’s petition without reaching the sisters’ respective motions. 3 In Camera, Merriam-Webster Online Dictionary, https:// www. merriam-webster.com/ dictionary/ in %20camera https://perma.cc/7XV3-N3JM.

3 the in -camera filing. Because the only re lief petitioner requested was a copy of the trust, th e court asked the parties to submit briefing on whether the petition had bee n rendered moot by the court’s order unsealing the trust document and its a mendments. The court denied co- trustees’ request for an evidentiary hearing. ¶ 5. Petitioner claimed that opening a trust action was still necessary bec ause after receiving a copy of the trust, she had requested additional information to which she was entitled by law that co-trustees had not yet provided to her. P etitioner alleged th at settlor had become incapacitated, making the trust irrevocable, a nd that petitioner had become a “qualified beneficiary” within the meaning of the Vermont Trust Code, 14A V.S.A. § 103(13)(A), such that she was entitled to information about the administration of the trust. S he further asserted that she was being treated differently by the trustee s than the other beneficiaries. Petitioner sought a copy of the letter from s ettlor’s doctor regarding her in capacity and a copy of the document by which co -trustee Hennigar accepted his responsibilities as successor trustee. Co -trustees responded that the matter was moot because the narrow relief r equested in the petiti on had been granted. Co- trustees further asserted that they ha d provided a report to petitione r of the t rust property pursuant to 14A V.S.A. § 813(c). They asserted that as a non-income beneficiary of the trust, petitioner had received all the informat ion she was entitled to, whether or not she was a qualified beneficiary. Co -trustees asked the court to dismiss the petition with prejudice. ¶ 6. Petitioner replied that the report she received did not account for trust property between 2009, when the trust was formed, and 2021; falsely stated that the sole trust asset was an investment a ccount, when petitioner was aware of at least one other checking account; and did not explain what happened to the proceeds of the sale of a commercial building that appeared to have been a trust asset. Petitioner asked the court to compel co-trustees to provide the information she requested and indicated that if the court required, she would amend he r petition to request a determination that she had become a qu alified beneficiary and to request further discovery from

4 co -trustees. Co - trustees responded that petitioner was not legally entitled to the letter from settlor’s doctor, co -trustee Hennigar’s trustee document, or an accounting of the entir e life of the trust; the checking account to which petitioner referred was not a trust asset; and explained that the proceeds of the commercial buil ding had been placed in t he trust. They opposed p etitioner’s request to amend her petition. ¶ 7. In September 2024, the court issued another order noting that the substantiv e relief petitioner requested was “satisfied, more or less.” However, it d etermined that dismissal with prejudice was not appropriate based on the allegations in petitioner’s p leadings. The court suggested that 14A V.S. A. § 603, whi ch provides that while a trust is revocable, the rights o f beneficiaries are subj ect to the control of the settlor, barred the relief sou ght by petitioner, but stated it would allow the trust action to proceed if there were “ credible facts and serious allegations ” that warranted the court’s exercise of its equitable powers. See 14A V.S.A. § 205 (providing probate division “may hear and determine in equity all matters relating to trusts in this title”). ¶ 8. Petitioner filed a lengthy response alleging that co-trustee Wiederhorn had invaded the trust principal, given herself a loan of over $ 1 million from the trust assets, and in retaliation for petitioner’s requests for information about the trust pursued a collection action against petitioner for promissory notes that the trust specified were to be fo rgiven upon settlor’s death. Petitioner asserted that co -trustee Wiederhorn h ad acted without consulting co-trustee Hennigar. Petitioner asked the probate division to ret ain ju risdiction pursuant to its powers of equity and regulation and to allow petitioner to conduct discovery to determine whether co -trustee Wiederhorn should be r emoved. In response, co-trustees stated that the di stributions from trust assets were for s ettlor, who remain ed in control of the trust, and whose medical expenses had tripled. They acknowl edged that co-truste e Wiederhorn had borrowed from the trust but asserted that she had repaid the loan.

5 ¶ 9. In Nov ember 2024, the court iss ued an order summarizing petitioner’s allegations and co- trustees’ responses. The court sought clarification and support for co- trustees’ assertion that settlor’s lifestyle costs were “on the rise.” The court noted that the increased cost was “unusual” because such costs typically decrease when someone is incapacitated and reaches advanced age. Accordingly, it asked the trust to provide further information on this issue. ¶ 10. In response, co-trustees asserted that settlor had dementia and that her medical expenses ha d increased significantly due to the need for caregivers. They asserted that settlor and co -trustee Hennigar continued to travel, go out to restaurants, and make g ifts to family and pay education expenses for f amily members. They listed settlor’s yearly expenses on an annualized basis without detail. Petitioner responded that co -trustees had failed to provide proof of th ese expenses or the trust’s income in the form of supporting documentation and data. ¶ 11. In January 2025, the court issued an order denying the petition to open a trust proceeding. The court stated that co- trustees’ response to its November 2024 order a ddressed the court’s concerns around spending of trust principal to support se ttlor’s lifestyle and medical needs. It therefore declined to invoke its equity jurisdi ction to “override the statutor y application” of § 603 and concluded that co-tr ustees presently owed n o duties to the trust’s remainder beneficiaries. Petitioner appeals. II. Analysis ¶ 12. We first address the qu estion of jurisdiction. This Court has jurisdiction over appeals from proba te proce edings that involve questions of law. 12 V. S.A. § 2551 (“ The Supreme Court shall have jurisdiction of questions of law arising in the course of the proceedings of the Superior Courts in probate matters, as in other causes.”). Our review is limited to pure questions of law that do not require factual distinctions gained from a review of the record. In r e Est. of Johnson, 158 Vt. 557, 5 59, 613 A.2d 703, 704 (1992). If a factual distinction could resolve an issue, we will not review the issue. Id. (noting such issues are inappropriate for our review). Here,

6 petitioner challenges the legal standard the court ap plied in dismissing the pe tition, and argues that the court erred in con cluding that 14A V.S.A. § 603 barred petitioner from seeking additional information under 14A V.S.A. § 813. These are bo th questions of law, which we have jurisdic tion to review. See, e.g., I n re Peter Val Preda Trs., 2019 VT 61, ¶ 7, 210 Vt. 607, 218 A.3d 27 (stating this Court had jurisdiction to review probate divi sion ’s decision to dism iss petition for trustee removal because its decision solely concerned questions of law). ¶ 13. We therefore turn to petitioner’s argument s on appeal. Petitioner argues that the probate division im properly fo cused o n whether co- trustees h ad satisfie d the court’s concerns about spending trust principal, rather than considering whether petitioner had alleged facts and circumstances that could justify relief under the Vermont Trust Code. Petitioner argues that the court was require d to accept petitioner’ s allegations and re asonable inference s a s true, and assume respondent’s contravening allegations to be false. Petitioner argues that, taken as true, the facts alleged in her various filings show that she is ent itled to discovery unde r § 813 of the Vermont Trust Code. ¶ 14. Addressing petitioner’s arguments requires us to interpret various provisions of the Vermont Trust Code. I n interpreting the Vermont Trust Code, we are guided by the familiar rules of statutory interpretation and aim to g ive effec t to the Le gislature’s in tent. Flint v. De p’t of La b., 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080 (“In interpreting a statute, our primary aim is always to determine the int ent of the Legislature and implement that intent.”). We look to the statute’s plain meaning to ascertain the Legislature’s intent. Id. If the Legislature’s intent is evident from the statute’s clear and unambiguous plain language, we will “implement the statute according to that plain language.” Id. We employ other to ols of statutory construction “only if the plain language of the statute is unclear or ambiguous.” Id. ¶ 15. Section 813 of the Vermont Trust Code delineates a trustee’s duty to keep beneficiaries informed a bout the administration of a trust. 14A V.S.A. § 813. A trustee is not

7 required und er § 813 to inform beneficiaries about every aspect of a trust’s administration. See Est. of Alden v. Dee, 2011 VT 64, ¶ 37, 190 Vt. 401, 35 A.3d 950 (“ A trustee’s duty to disclose . . . does not require the trustee to infor m the beneficiaries of every aspect of administration of the trust . . ..”). Instead, § 813 entitles beneficiaries to different information depending on their status. A trustee must keep “qualified beneficiaries of the trust reasonably informed about the administ ration of the trust an d of the material facts n ecessary . . . to protect their interests.” 14A V.S.A. § 813(a); see also 14A V.S.A. § 103(13)(A)(ii i) (defining “qualified beneficiary ” and noting qualified beneficiary includes “final beneficiar[ies],” meaning those who would be distributees if trust terminated). Section 813(a) also requires a trustee to “promptly respond to a beneficiar y’ s request for information” related to trust administration unless doing so would be “unreasonable under the circumstances.” 14A V.S.A. § 813(a). The Official Comment to § 813(a) clarifies that these duties are limi ted to qualified beneficiaries. Section 813(b)(1) requires a trustee to “prompt ly furnish” a copy of a trust inst rument to any beneficiary, qualified or otherwise, upon the beneficiary’s request. 14A V.S.A. § 813(b)(1). The next subsection, § 813(c), requires a trustee to send an annual report of “ trust property, liabilities, rece ipts, and disbursements, including the source and amount of the trustee ’ s c ompensation, a listi ng of the trust assets, and, if feasible, their respective market values ” to distributees of trust income or principal and “to other beneficiaries who request it.” Id. § 8 13(c). ¶ 16. However, § 813 is limited by § 603, which provides that “[w]hile a trust is revocable, rights of th e beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.” Id. § 603(a). In other words, “while a trust is revocable, all rights that the beneficiaries would otherwise pos sess are subject to the settlor ’s control.” In re Stephen M. Gunther Revocable Livi ng Tr., 350 S. W.3d 44, 46 (Mo. Ct. App. 2011) (holding, under Missouri’s ve rsion of Un iform Trust C ode, that because truste e of revocable trust owe d no duty to beneficiaries prior to settlor’s death, they were not entitled to accounting of trust tra nsactions prior

8 to that date); see also In re Tr. No. T-1 of Trimble, 826 N.W.2d 474, 489 (Iowa 2013) (holding same under Iowa’s version of Uniform Trust Code). ¶ 17. Petitioner argues that a settlor must have testament ary capacity to revoke or amend a revocable trust, and alleges that settlor has been incapacitated since 2021. See 14A V.S.A. § 601 (requiring settlor’s c apacity to “create, amend, revoke, or add property to a revocable trust” as same capacity required to make will). Thus, peti tioner argues, the trust h as effectively be come irrevocable for purposes of § 603. ¶ 18. However, the comments to the Vermont Trust Code make clear that a settlor’s incapacity does not make the trust irrevocable or trigger the beneficiary’s right to information. “The fa ct that the settlor bec omes incapacitated does not convert a r evocable trust into an irrevocable trust. The trust remains revocable unti l the settlor’s death or the power of revocation is released.” Official Comment, 14 A V.S.A. § 103. Further, the Vermont Comment to § 603 explains that our Legisl ature deliberately opted not to make the settlor’s rights and powers dependent on capacity: The Uniform Trust Code optional language of “and the settlor has capacity to revoke the tr ust” after “ While a trust is revocable” was not adopted into the Vermont Trust Code. This is consistent with the concept that the subsequent mental incapacity of the settlor will not affect the settlor’s rights and powers. The settlor’s retained rights and powers may be exercised by an agent. The 2004 Of ficial Comment to § 603 explains that the drafters of the Uniform Trust Code made the capacity language optional because it can b e difficult to determine when a settlor has become incapacitated and because it treats trusts differently than wills, wh en many felt the rules for both should be the same: “In the case of a will, the devisees have no right to kn ow of the dispositions made in their favor until the testator’s death, whether or not the testator is incapacitated. Under Section 603, however, the remainder beneficiary’s right to know commences on the settlor’s incapacity. ” For these reasons, in 2004 the Uniform Trust Code was amended to make the capacity

9 language optional. “Since 2004, at least twenty -five states have rejected beneficiary standing during the settlor ’ s incapacity, including some that had previously allowed such standing.” D. Feder & R. Sitkoff, Re vocable Trusts a nd Incapacity Planning: More Than Just A Will Substitute, 24 Elder L.J. 1, 37 (2016) (explaining history of provision). ¶ 19. The c omments to the Vermont Trust Code are a strong indication of the Legislature’s intent. Cf. Bissonnette v. Wylie, 162 Vt. 598, 602, 654 A.2d 333, 336 (1994) (explaining that this Court regards comments to U niform C ommercial C ode (UCC) “as a strong indication of the Legisla ture ’s intent in adopting a particular UCC provision”); see Springfi eld Tchrs. Ass ’ n v. Springfi eld Sch. Dirs., 167 Vt. 180, 188 n.3, 705 A.2d 541, 546 n.3 (1997) (“ Ordinarily, when the Legislature models a statute after a uniform act, but does not adopt particular language, we conclude that the omission was intentional such that the policy of the uniform act was rejected. ”). They support the conclusion that a trustee’s duty to provide information under § 813 is owed solely to the settlor until the trust be comes irrevocable. See F. Foster, P rivacy and the Elusive Quest for Uniform ity in the Law of Trusts, 38 Ariz. St. L.J. 713, 753- 54 (2006) (“If the li ving settlor of a revocable trust becomes incapacitated, do beneficiaries have rights to information about the trust, including access to the trust instrument? . . . In [states that opted not to include optional language of § 603], . . . the answer is an unequivocal ‘ no. ’ ”). The probate division therefore properly dismissed the petition to the extent that it was based o n petitioner’s alleged right to information under § 813. 4 ¶ 20. That does not end our inquiry, however. In her responses to the probate division’s orders, petitioner added a new request for relief, which was to investigate whethe r co -trustee Wiederhorn should be removed unde r 14A V.S.A. § 706. Section 706 provide s that “[t]he settlor, 4 The cases cited by petit ioner are distinguishable because they do not involve revocable trusts. See, e.g., Tr. Created Unde r the Will of Damon, 398 P.3d 645 (Haw. 2017); Snell v. Snell, 2016 WY 49, ¶ 5, 374 P.3d 1236; Jacob v. Davis, 738 A.2d 904 (Md. Ct. Spec. App. 1999).

10 a cotrustee, or a be neficiary ” may seek to hav e a trustee removed or r eplaced for “a serious breach of trust,” a “ lack of cooperation among cotruste es, ” or other enumerated reasons. 14A V.S.A. § 706(a), (b). Section 70 6 contains no limitations on the type of trust to which it applies. Unlike the trustee’s duty to provide information, the re is no indi cation in the statute or comments that a beneficiary cannot seek removal of a trustee until the trust becomes ir revocable. Rath er, the Official Comm ent to § 706 states: “T he right of a beneficiary to petition for removal does not apply to a revocable trust while the settlor has capacity. Pursuant to subsection 603(a), while a trust is revocable and the settlor has capacity, the rights of the beneficiaries are s ubject to the settlor’s exclusive control.” Offi cial Comment, 14A V.S.A. § 706 (emphasis added). This language, which the Legislature did not alter from its original form when enacting the Vermont Trust Code, indicates that if a settlor is inca pacitated, a beneficiary ha s the right to petition for trustee removal under § 706. See In re Conservatorship of Abbott, 890 N.W.2d 469, 48 0 (Neb. 2017) (holding that beneficiaries had sta nding under Nebraska’s version of § 706 to seek removal of trustee of revocable trust whose settlor was alive but incapacitated). ¶ 21. Here, petitioner alleged that co-trustee Wiederhorn was acting without the consent of co-trustee Hennigar and ha d given herself a larg e loan fr om the trust. 5 Petitioner further alleged that the report the trust provided contained inaccurate trust principal and expense amounts. Petitioner asked for permission to amend her complaint to seek removal of co-trustee Wiederhorn under § 706. The probate divi sion dismissed the petition without addressing petitioner’s request, effectively denying it. ¶ 22. Vermont Rule of Probate P rocedure 15(a) provide s that leave to amend a petition “ shall be freely given w hen justice so requires.” Both Rule 15 and Vermont’s common -law tradition “encourage liberality in allowing amendments to pleadings” when doing so will not 5 Co -trustees acknowledged that the loan had occurred, though they denied that it constituted a basis for further proceedings.

11 prejudice the other party. Bevins v. King, 143 Vt. 252, 254, 465 A.2d 282, 283 (1983). W hile the trial court may deny an amendment if it would prejudice another p arty or is frivolous or made in bad faith, the court did not consider those factors here. Instead, it simply did not address the request, whic h was an abuse of discr etion. See PeakCM, LLC v. Mountainview Metal Sys., LLC, 2025 VT 50, ¶ 18, __ Vt. __ , 346 A.3d 444 (explaining that failure to exercise discretion is abuse of discretion). Remand i s therefore necessary fo r the court to consider petiti oner’s request to amend he r petition. Bec ause we hold that the probate division e rred in failing to address petitioner’s request and reverse and remand on that basis, we do not reac h petitioner’s subsequent arguments. ¶ 23. In sum, we hold th at petitioner was not entitled to receive trust information under § 813 beca use the trust remains revocable while settlor is alive. How ever, we reverse and remand the dismissal order for th e probate division to consider petitioner’s request to amend her petition. In so holding, we take no position on whether settlor is in fact incapacitated, whether petitioner is a qualified beneficiary, or any other factual questions raised by this appeal. Those matters are for the probate division to resolve in the context of any further proceedings that occur on remand. Reversed and remanded for the probate division to address petitioner’s r equest to amend her petition to seek removal of co-trustee(s). FOR THE COURT: Chief Justice