in re pratt

VERMONT SUPERIOR COURT CIVIL DIVISION
Windsor Unit Case No. 23-CV-01682
12 The Green
Woodstock VT 05091
802-457-2121
www.vermontjudiciary.org

In re Jennifer Pratt

Decision on Pending Motions
During their lives, Theodore “Jack” Green and Barbara Green were the owners of an
automobile dealership in Rochester, Vermont, and they had two children: Joanne and Jennifer. Joanne
worked in the family business, and Jennifer had a successful career of her own. After Barbara and Jack
passed away in 2020 and 2021, two probate proceedings were initiated regarding their estate-planning
choices—one involving Barbara’s trust, and another involving Jack’s estate. Both proceedings have
been consolidated in this probate appeal, and presently before the court are four substantive questions.

Question #1: Distribution of the Automobile-Dealership Properties
The first question involves the distribution of property under Barbara’s revocable trust. Barbara
created the trust in February 2003, and in April 2003, Jack transferred into the trust two parcels of real
estate that were used in connection with the automobile-dealership business. At issue is how those
properties should be distributed.
The relevant provisions of the trust are as follows:
(1) tangible personal property should be distributed by agreement or in
the discretion of the trustee;
(2) all of “[d]onor’s interest in any real estate” held in the trust should
be distributed to Joanne;
(3) “40% of the remainder” of the trust should be distributed to Joanne;
and
(4) “60% of the remainder” of the trust should be distributed to
Jennifer.
The plain language of these provisions appears to provide straightforwardly for Joanne to
receive any real estate held by the trust along with 40% of the remainder, and for Jennifer to receive
60% of the remainder. See, e.g., Beldock v. VWSD, LLC, 2023 VT 35, ¶ 27; VanSantvoord v. Henry W.
Putnam Mem. Hosp., 125 Vt. 289, 293 (1965) (explaining, together, that the role of the court when
Order Page 1 of 7
23-CV-01682 In re: Jennifer Pratt
interpreting trust agreements is to discern the intent of the settlor by reading the plain language in the
context of the whole agreement).
Likewise, the straightforward reading of the trust still makes sense even when the court
considers “limited extrinsic evidence” of the “circumstances surrounding the making of the
agreement,” e.g., Beldock, 2023 VT 35, ¶ 28; Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 577–81
(1988). Joanne was the daughter who participated in the family automobile dealership, and the trust
was funded with two parcels of real property that were used in connection with the family automobile
dealership. It makes sense that the dispositive provisions of the trust would distribute to Joanne the real
estate associated with the family automobile dealership along with a smaller percentage of the
remainder of the trust, and that the trust would distribute to Jennifer an accordingly larger percentage
of the remainder.
Jennifer, however, argues that the automobile-dealership properties are not “real estate” under
the terms of the trust, but rather “personal property” that should be distributed under the provisions
pertaining to the remainder of the estate. She argues first that her interpretation makes sense in
retrospect because the trust was never funded with any other assets (though the daughters both
received various other inheritances through other means). However, the relevant time for interpretation
of the trust is not now, but rather the time when it was made. See VanSantvoord, 125 Vt. at 293 (“A
trust deed takes effect when it is made and the construction that would be given to it at that time holds
true throughout the life of the instrument.”). Later events are not a basis for reading the trust in a
manner contrary to its plain language.
Jennifer observes second that the trust’s second distributive provision referred to the “[d]onor’s
interest in any real estate.” Jennifer argues that this phrase does not refer to the automobile-dealership
properties because those properties were owned in fee simple by the trust, and the donor therefore had
no interest in them. Even considering the evidence in the light most favorable to Jennifer, however, the
court does not view this interpretation as reasonable, for a number of reasons. See Sutton v. Purzycki,
2022 VT 56, ¶ 37 (explaining that an alternative interpretation must be “reasonable” in order to show
an ambiguity in an otherwise-plain writing).
First, the trust was revocable. This means that the donor retained ultimate control over all of the
trust property, and could have revoked the trust at any time. 14A V.S.A. § 603(a); Bogert’s Law of
Trusts and Trustees § 1061. As such, at the time the trust was written, the donor had substantial
remaining interests in the trust property, and there was nothing contradictory or confusing about
referring to the donor as having such an interest.
Second, the language regarding “the donor’s interest” does not provide a material distinction
relevant to this case. VanSantvoord, 125 Vt. at 293. No evidence has been offered to show that there
was some real estate in which the donor had an interest, and some real estate in which the donor had no
interest. A plain reading does not support the conclusion that Barbara and Jack intentionally wrote their
distributive provisions to define “real estate” in a way that did not apply to their real estate. See
Williston on Contracts § 32:9 (explaining that “[t]he law prefers an interpretation which gives effect to
all parts of the contract rather than one which leaves part of the contract ineffective or meaningless”);
State v. Ben-Mont Corp., 163 Vt. 53, 60 (1994) (explaining, in the context of statutory interpretation,
that courts should not endorse interpretations that “render[] a significant part” of the statute as
meaningless). Nor is it necessary for the court to invent some meaning for the phrase that is relevant to
Order Page 2 of 7
23-CV-01682 In re: Jennifer Pratt
this case; other considerations (e.g., divorce, taxes) are involved in the creation of trust instruments. At
a minimum, it does not appear that the settlors meant for the words to have dispositive significance at
the time of drafting, and the court is therefore not inclined to read dispositive significance into the
words, either.
Jennifer also argues that the automobile-dealership properties are not “real estate” but rather
“personal property” because of the way Jack wrote the deed that transferred the properties into the
trust. In pertinent part, he wrote that the properties were being conveyed to the trust “in fee simple,”
and that the trustees would have “full power and authority” to “sell” and “mortgage” and “lease” the
properties. He also wrote that the interest of the beneficiaries in the property was limited to a “personal
property” interest in “the earnings, avails and proceeds arising from the rental, sale or other disposition
of the premises.” He further wrote that the beneficiaries had no “right, title or interest, legal or
equitable, in or to the premises.”
A plain reading of this language is that it was meant to perform the function of a trust
certificate, e.g., 14A V.S.A. § 1013. In other words, the language was meant to reassure potential
creditors that the trustees had the full power to sell and mortgage the properties, and that the consent of
the beneficiaries was not needed. See Bogert’s Law of Trusts and Trustees § 741 (describing how
issues of beneficiary consent may interrupt some proposed sales in the absence of clarifying language).
It may have been that there were other ways of providing necessary information to potential creditors
without having to provide them with the entire trust instrument, but the availability of other forms of
certification does not mean that the inclusion of assurances in the deed must have meant something
else.
Furthermore, there is no language in the deed suggesting that Jack intended any amendments to
the distributive provisions of the trust. It is true that Jack wrote that the language of the trust deed was
“affirm[ing]” and “supplement[ing]” the provisions of the trust, but those references regarded only the
details that would have been important from the perspective of a potential creditor. Nothing in the deed
made any references to the distribution of trust property. Nor does it make sense for Jack and Barbara
to have hired attorneys to prepare a comprehensive estate plan in February 2003, and for Jack to have
amended the estate plan two months later, in April 2003, through opaque references in a separate deed.
Nothing about the deed indicates an intention to make dramatic amendments to the ultimate
distribution of trust property.
A final consideration is that the proposed interpretation of the deed does not result in a
complete distribution of trust property. If the interest of the beneficiaries was intended to be only
“personal property” interests in the proceeds from the property, and the beneficiaries had no “right,
title or interest, legal or equitable, in or to the premises,” then the proposed interpretation does not
explain who is to be the legal owner of the property upon final distribution of the trust. Given that the
plain and straightforward reading of the trust provides for a complete distribution of trust property, it is
not reasonable to entertain an interpretation that introduces a fatal error into the distributive provisions
of the trust.
For these reasons, the court interprets the trust to mean what it says: Joanne should receive any
real estate held by the trust along with 40% of the remainder, and Jennifer should receive 60% of the
remainder.

Order Page 3 of 7
23-CV-01682 In re: Jennifer Pratt
Question #2: Stock Claim
The second question involves the distribution of Barbara’s stock in the automobile dealership.
The material allegations here are that, during the 2010s, the stock in the automobile dealership was
held primarily by Jack, Barbara, and Joanne. By the end of the decade, however, Barbara’s health was
failing, and so (according to Joanne) Barbara gave her shares to Jack and Joanne in 2019.
Jennifer contends that this gift was not actually made at the time (her evidence being that stock
certificates reflecting the transaction were not created until later in time, following the death of both
parents). Jennifer also contends that, if any gift was indeed made in 2019, Barbara did not then have
the mental capacity to make such a gift. For these reasons, Jennifer contends that the stock shares
should have passed through Barbara’s pourover will into the trust, and that the stock shares should be
distributed under the remainder provisions of the trust.
Here, the procedural posture prevents the court from considering the claim. Jennifer’s claim is
fundamentally that the stock shares should have “pass[ed] through [Barbara’s] estate” into the trust via
the pourover will. See In re Barbara Green Trust, Docket No. 22-PR-01343, Petition (Vt. Super. Ct.
Mar. 7, 2022); In re Estate of Theodore Green, Jr., Docket No. 21-PR-07041, Petition for Allowance
of Claim of Jennifer G. Pratt (Vt. Super. Ct. June 7, 2022). But there was never a probate proceeding
opened for Barbara’s estate, and the present dockets do not involve Barbara’s estate, either. Instead,
the present proceedings involve the administration of Barbara’s trust and the probate of Jack’s estate.
See, e.g., In re Barbara Green Trust, Docket No. 22-PR-01343; In re Estate of Theodore Green, Jr.,
Docket No. 21-PR-07041. Although the trust-administration and estate-administration dockets present
opportunities to raise claims regarding what existing funds should be included within the trust or
within Jack’s estate, neither docket presents an opportunity to reach backwards in time and litigate
what funds should have been included within Barbara’s estate. At this point, claims against Barbara’s
estate are time-barred. 14 V.S.A. § 1203(a). For these reasons, with respect to the stock claims,
Jennifer has failed to state claims upon which relief can be granted.

Question #3: Rent Claim
The third question involves the collection of rent from the automobile-dealership properties.
Here, the material allegations involve rental agreements between the automobile dealership and
Barbara’s trust over certain periods of time. The basic premise of the agreements was that the
automobile dealership was supposed to pay rent every month to Barbara’s trust. Jennifer claims that
some of these amounts were never collected, and are essentially accounts receivable that should be
collected either by the administrator of Jack’s estate or the administrator of the trust, and distributed to
Jennifer and Joanne under the terms of the trust. See In re Barbara Green Trust, Docket No. 22-PR-
01343, Petition (Vt. Super. Ct. Mar. 7, 2022); In re Estate of Theodore Green, Jr., Docket No. 21-PR-
07041, Petition for Allowance of Claim of Jennifer G. Pratt ¶¶ 69–97 (Vt. Super. Ct. June 7, 2022).
Defendants seek dismissal of the rent claims for failure to state a claim upon which relief can
be granted. At the motion hearing, however, defendants’ reasons for why the claim should be
dismissed were factual in nature. A motion to dismiss is not the time or place for factual
determinations, nor an opportunity to “resolv[e] a contest between the parties about the facts or
substantive merits of the plaintiff’s case.” 5B Wright & Miller, Federal Practice and Procedure: Civil
Order Page 4 of 7
23-CV-01682 In re: Jennifer Pratt
3d § 1356; Colby v. Umbrella, Inc., 2008 VT 20, ¶¶ 13–14, 184 Vt. 1; Bock v. Gold, 2008 VT 81, ¶ 8,
184 Vt. 575 (mem.). A claim regarding what existing funds should be included within the trust or
within the estate are exactly the kinds of claims that can be raised in trust and estate proceedings. For
this reason, the rent claims are claims upon which relief can theoretically be granted. Any
determinations regarding whether the claims have merit must await either a summary-judgment motion
or a merits hearing.

Question #4: In Terrorem Clause
The fourth question involves whether judgment should be granted to defendants because the
trust and will both include “in terrorem” clauses, meaning provisions in the document that provide for
the disinheritance of a beneficiary who challenges a will or trust. See, e.g., Slosberg v. Giller, 876
S.E.2d 228, 233–38 (Ga. 2022) (explaining the nature of the clauses in general terms). In this case, the
specific language of the in terrorem clause is as follows:
If any person for any reason or in any manner, directly or indirectly,
contests this trust in whole or in part on any ground whatever, or opposes
or objects to any of the provisions hereof, or seeks to invalidate any such
provision, or seeks to succeed to donor’s estate or any part thereof
otherwise than through this trust, then such person shall neither take nor
receive anything from the trust estate, and any gift or other interest in the
trust estate to which such person would otherwise be entitled by virtue of
the provisions of this trust shall be revoked and be canceled and rendered
void and of no effect whatever.
At issue is the enforceability of the provision. No prior Vermont precedents regarding in
terrorem provisions have been provided to the court. A wide split of authority exists in other states. See
generally Beyer, Dickinson & Wake, The Fine Art of Intimidating Disgruntled Beneficiaries with In
Terrorem Clauses, 51 SMU L. Rev. 225 (1998) (discussing the history of in terrorem provisions and
modern approaches to enforcement).
A common thread throughout the jurisprudence, however, recognizes that “in terrorem” or
exculpatory clauses should not be interpreted as protecting trustees from beneficiary claims regarding
trust administration. The approach of the American Law Institute is that an exculpatory provision in a
trust instrument “is not effective to relieve the trustee of liability for breach of trust committed in bad
faith or intentionally or with reckless indifference to the interest of the beneficiary, or of liability for
any profit which the trustee has derived from a breach of trust.” Restatement (Second) of Trusts § 222;
see also Restatement (Third) of Property (Wills & Donative Transfers) § 8.5 cmt. a (explaining that
clauses that “purport[] to prohibit beneficiaries from enforcing fiduciary duties owed to the
beneficiaries by trustees” are not within the scope of the permissible no-contest clauses recognized by
the ALI). In other words, the idea is that an exculpatory clause should not become an “instrument of
defense in the hands of a faithless or negligent fiduciary.” Beyer et al, supra, 51 SMU L. Rev. at 244
(internal quotation omitted). Here, because the rent claim is a claim that the trust administrator has
failed to collect rents owed to the trust, and a claim that the estate administrator has failed to collect
rents owed to the estate, the court follows the two Restatement sections above, and does not construe
the no-contest clause as effective under the circumstances.
Order Page 5 of 7
23-CV-01682 In re: Jennifer Pratt
Endnotes
Several additional comments are necessary. First, in reaching its conclusion regarding the
distribution of the automobile-dealership properties, the court did not rely upon the doctrine of
reformation. It is not clear whether the probate division relied upon the doctrine, either, but certain
references in the probate division’s opinion created considerable argument between the parties. Here,
the court’s analysis was interpretive in nature.
Second, in preparing its decision, the court did not address all of the arguments made by the
parties, nor all of the facts asserted by the parties. An example is that Jennifer argued that her
interpretation regarding the distribution of the automobile-dealership properties was supported by the
inclusion of the plural term “trust agreements” in the April 2003 deed. In other words, Jennifer’s
argument was that because the deed used the plural term, the court should conclude that there were
multiple trust agreements, and that the deed must be one of those agreements, and thus the deed should
be construed as creating a new trust or amending the existing trust. Given all of the other
considerations described in this opinion—including that Jack and Barbara both created trusts in
February 2003, and so there were already multiple trust agreements at the time the deed was written—
the court declined to find dispositive significance in the use of a plural, especially where the deed did
not otherwise describe itself in those terms, and where a plain and straightforward reading of the
relevant documents did not support the proposed interpretation. To the extent that additional arguments
were made by the parties but not further addressed herein, the court did not find the arguments to be
persuasive. And to the extent that additional facts were argued by the parties, the court did not find
them to be material.
Third, the court’s opinion represents a number of determinations made on a variety of motions.
The issue regarding the distribution of the automobile-dealership properties was the subject of cross-
motions for summary judgment filed by defendant Joanne Mills (MPR#2) and plaintiff Jennifer Pratt
(MPR#3). In resolving these motions, the court evaluated each party’s motion “on an individual and
separate basis” and determined “for each side” whether the moving party demonstrated that there were
no genuine issues of material facts and that they were entitled to judgment as a matter of law. 10A
Wright & Miller, Federal Practice and Procedure: Civil 3d § 2720; Price v. Leland, 149 Vt. 518, 521
(1988). On each motion, the non-moving party was given the benefit of all reasonable doubts and
inferences. Beldock, 2023 VT 35, ¶ 21; Price, 149 Vt. at. 521. The court’s conclusion was that the trust
agreement was unambiguous and that the plain language controlled as a matter of law. Beldock, 2023
VT 35, ¶ 27.
Fourth, the Estate of Theodore Green also filed a motion for summary judgment regarding the
distribution of the automobile-dealership properties. However, that issue was not presented in the
docket regarding the administration of Jack’s estate. See In re Estate of Theodore Green, Jr., Docket
No. 21-PR-07041, Petition for Allowance of Claim of Jennifer G. Pratt (Vt. Super. Ct. June 7, 2022).
For that reason, and in light of the disposition of the cross-motions between the parties to the trust
proceeding, the estate’s motion is denied as moot.

Order Page 6 of 7
23-CV-01682 In re: Jennifer Pratt
Finally, the rent claim and stock claim were raised in the context of motions to dismiss for
failure to state a claim upon which relief can be granted. The procedural standards applicable to those
motions were addressed above.

Orders

Defendant Joanne Mills' Motion for Partial Summary Judgment (Motion #2), filed August 15,
2023, is granted;

Plaintiff Jennifer Pratt's Cross-Motion for Summary Judgment (Motion #3), filed September
13, 2023, is denied;

Defendant Estate of Theodore Green's Motion for Partial Summary Judgment (Motion #4),
filed September 14, 2023, is denied as moot;

Defendant Estate of Theodore Green's Motion for Summary Judgment Related to Barb's Trust
Disinheritance Provision (Motion #5), filed September 14, 2023, is denied;

Defendant Estate of Theodore Green's Motion to Dismiss (Motion #6), filed September 14,
2023, is granted as to the stock claim and denied as to the rent claims.
It is not clear to the court whether any discovery is needed on the rent claims. The parties shall
file a scheduling order that provides for any discovery and that also establishes a deadline for the filing
of any dispositive motions with respect to the rent claims, along with a trial-ready date in the event that
no dispositive motions are filed. A scheduling order shall be filed within 30 days of the file-stamped
date of this order. If no stipulated order is filed by then, the court will set the schedule, taking into
consideration any competing submissions by the parties.

Electronically signed on Monday, April 29, 2024 pursuant to V.R.E.F. 9(d).

H. Dickson Corbett
Superior Court Judge

Vermont Superior Court
Filed 04/29/24
Windsor nit

Order Page 7 of 7
23-CV-01682 In re: Jennifer Pratt