Preview
FILED
4/15/2024 3:32 PM
JOHN F. WARREN
COUNTY CLERK
PR-24-01337-1 DALLAS COUNTY
CAUSE NO.
WALTER ELLIS SISTRUNK, JR., § IN THE PROBATE COURT
§
Plaintiff, §
§
§
V § NO.
é
BANK OF AMERICA CORPORATION, §
§
Defendant. § DALLAS COUNTY, TEXAS
ORIGINAL PETITION TO MODIFY, REFORM, OR TERMINATE TRUST
PURSUANT TO TEXAS PROPERTY CODE SECTION 112.054(b)
AND FOR DECLARATORY JUDGMENT PURSUANT TO
CHAPTER 37 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Walter Ellis Sistrunk, Jr. (“Plaintiff”), Plaintiff herein, and files his
Original Petition to Modify, Reform, or Terminate the Sistrunk Family Trust Pursuant to
Texas Property Code Section 112.054(b) and for Declaratory Judgment Pursuant to
Chapter 37 of the Texas Civil Practice and Remedies Code, and, in support hereof, would
show the Court the following:
I. DISCOVERY
1. As provided by Rule 190 of the Texas Rules of Civil Procedure, Plaintiff intends to
conduct discovery under Level 3.
ll. PARTY IDENTIFICATION
2. Plaintiff is Walter E. Sistrunk, Jr., an individual who resides at 13971 Wetherburn
Street, Waldorf, Maryland 20601. The last three digits of Plaintiff’s Maryland driver’s
license number are 726. The last three digits of Plaintiff’s Social Security number are
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 1 of 7
188.
3. Defendant is Bank of America Corporation (“Defendant”), a Delaware corporation
whose principal office is located at 401 North Tryon Street, Suite 300, Charlotte, North
Carolina 28202-2123. Defendant may be served through Defendant’s registered agent
for service, C T Corporation System, whose address is 1999 Bryan Street, Suite 900,
Dallas, Texas 75201.
Ill. JURISDICTION AND VENUE
4. This Court has jurisdiction over Defendant because said Defendant purposely
availed itself of the privilege of conducting activities in the State of Texas and established
minimum contacts sufficient to confer jurisdiction over said Defendant. Defendant’s
contacts with the State of Texas are continuous and systematic.
5. This Court has jurisdiction over the subject matter of this cause under Section
32.006(1 )-(2) of the Texas Estates Code.
6. Venue is proper in Dallas County, Texas, because the events giving rise to this
cause of action occurred within Dallas County.
7. The damages sought are within the jurisdictional limits of this Court. Plaintiff seeks
damages less than $250,000.00 and injunctive relief.
IV. FACTS
8. On or about April 5, 1984, Walter Ellis Sistrunk (“Testator”), a.k.a. W.E. Sistrunk,
executed a will dated April 5, 1984 (“Will”). A copy of the Will is attached hereto as
A and incorporated by reference. In the Will, Testator directed that a testamentary trust,
named the Sistrunk Family Trust (“SFT”), be created to administer the property described
in “Item Seven” of the Will. Testator named RepublicBank Dallas, N.A., as the original
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 2 of 7
trustee of the trust. Testator named his “issue” and the Sistrunk Children Investment Trust
(“SCIT”) as the net income beneficiaries of the trust. A copy of the SCIT trust agreement
is attached hereto as Exhibit B and incorporated by reference. The Wi|| directed that the
net income of the SFT be distributed on at least a quarterly basis, with 50 percent
distributed to Testator’s issue, per stirpes, and the other 50 percent distributed to the
SCIT. Testator’s implied purpose in creating the SFT and SCIT was to provide a
continuing income for the support and maintenance of Testator’s children and other
descendants.
9. The trust agreement for the SCIT, dated April 4, 1984, names RepublicBank Dallas,
N.A., as the Trustee for the SCIT. The SCIT, unlike the Will, specifically names Testator’s
children, Walter Ellis Sistrunk, Jr., Emily Baldwin Sistrunk Hodo, and Berkley Ware
Sistrunk Ostrander, as the beneficiaries of the SCIT.
10. Testator died in 1987. The Will was admitted to probate, and the SFT was
established and funded with estate assets in accordance with the Will. RepublicBank
Dallas, N.A., began administering the SFT as the initial Trustee.
11. Following a series of mergers and acquisitions, Bank of America, N.A., became
the successor in interest to RepublicBank Dallas, N.A., and is presently the Trustee of
both the SFT and the SCIT.
12. In the time following Testator’s death, the amount of net income paid to the
beneficiaries by the SFT steadily decreased in value. At present, it pays the beneficiaries
only a small amount, if anything, each year.
13. Plaintiff contacted Defendant to request termination of the SFT and distribution of
the trust assets to the Testator’s descendants. Defendant refused to distribute the entire
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 3 of 7
trust corpus to the Testator’s descendants and stated that it could only terminate the SFT
by distributing half of the corpus to the SCIT.
14. When Plaintiff disagreed with the Defendant's interpretation of the Will, Defendant
informed Plaintiff that it would take no further action toward termination of the SFT and
advised Plaintiff to seek counsel if he wished to further pursue termination.
V. CAUSES OF ACTION
A. Modification, Reformation, or Termination of Trust
15. Plaintiff brings this action for modification, reformation, or termination of the Trust
pursuant to Section 112.054 of the Texas Property Code.
16. The primary purpose of the SFT is to provide the Testator’s children and other
descendants with income for their support and maintenance during the children’s lifetime.
Because of the present circumstances surrounding trust administration, the SFT is failing
to fulfill this primary purpose.
17. The purposes of the SFT have been fulfilled or have become illegal or impossible
to fulfill.
18. Because of circumstances not known to or anticipated by the Testator, an order
modifying, reforming, or terminating the SFT will further the purposes of the SFT.
19. Continuance of the SFT is not necessary to achieve any material purpose of the
SFT.
20. The order sought by Plaintiff is not inconsistent with a material purpose of the SFT.
21. Plaintiff anticipates that all beneficiaries of the SFT will consent to issuance of the
order sought herein.
22. For these reasons, Plaintiff requests that the Court issue an Order:
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 4 of 7
a. Modifying Item Eleven of the Will to clarify that the “person or persons, per
stirpes, then entitled to income” refers only to the Testator’s descendants
entitled to income at the time of termination;
b. Directing Defendant to disburse the entire remaining corpus of the SFT to
the Testator’s descendants, per stirpes; and
c. Terminating the SFT.
B. Declaratory Judgment
23. Plaintiff brings this action for declaratory judgment pursuant to Chapter 37.005 of
the Texas Civil Practice and Remedies Code.
24. As part of the Will, the Testator states in Item Eleven that, in the event of early
termination under the provisions of that section, the corpus of the SFT is to be distributed
“to the person or persons, per stirpes, then entitled to the income.” This language
referring to “person or persons, per stirpes,” should be interpreted to mean natural
persons named in the Will and not the SFT or the Defendant.
25. Atrust is not a legal person or entity; rather, it is a fiduciary relationship wherein a
trustee holds legal title to property for the benefit of one or more beneficiaries.
26. Further, the term “per stirpes" is not used in relation to trusts or trustees. lt
represents an election by a testator as to how beneficiaries’ and their heirs’ shares are
calculated for the purposes of distribution. It is virtually never used to refer to anything
other than natural persons in their individual capacity.
27. Finally, the phrase “person or persons, per stirpes, then entitled to income”
parallels Testator’s use of the phrase “per stirpes, unto my issue who are living at the time
such income is distributable during the continuation of this Sistrunk Family Trust” in Item
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 5 of 7
Seven of the Will when he designates the beneficiaries who are natural persons entitled
to a share of net income generated by the SFT.
28. For these reasons, Plaintiff asks the Court to render declaratory judgment
interpreting the phrase “person or persons, per stirpes, then entitled to income” to refer
only to natural persons who are the living issue of the Testator and not the SFT or the
Trustee.
VII. ATTORNEY’S FEES AND COSTS
29. Plaintiff requests judgment for reasonable and necessary attorney’s fees and costs
under Sections 37.009 of the Texas Civil Practice and Remedies Code.
VIII. REQUIRED INITIAL DISCLOSURES
30. As provided in Rule 194 of the Texas Rules of Civil Procedure, required initial
disclosures of all items listed in Rule 194.2 must be made within 30 days after the filing
of the first answer unless a different time is set by agreement of the parties or court order.
IX. RULE 193.7 NOTICE
31. Notice is hereby given that any document produced in response to written
discovery is subject to use as authenticated evidence in any pretrial proceeding or at trial
unless the producing party objects to the authenticity of said document in accordance
with Rule 193.7 of the Texas Rules of Civil Procedure.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the
Court renderjudgment for Plaintiff and against Defendant; that the Court issue an order
for modification, reformation, or termination consistent with the request made herein; that
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 6 of 7
the Court render declaratoryjudgment consistent with the request made herein; that the
Court grant Plaintiff all other relief hereinabove requested; and that the Court grant
Plaintiff such other and further relief to which Plaintiff may be justly entitled at law or in
equity.
Respectfully submitted,
UDESHI LAW FIRM PLLC
2201 Main Street
Suite 600
Dallas, Texas 75201
Tel. 817-770-0694
Fax. 817-770-0482
By: /s/ Kunal Udeshi
Kunal Udeshi
SBN: 24076744
kunal@udeshilaw.com
Original Petition to Modify, Reform, or Terminate Trust
and for Declaratory Judgment
Page 7 of 7
Preview
FILED 4/15/2024 3:32 PM JOHN F. WARREN COUNTY CLERK PR-24-01337-1 DALLAS COUNTY CAUSE NO. WALTER ELLIS SISTRUNK, JR., § IN THE PROBATE COURT § Plaintiff, § § § V § NO. é BANK OF AMERICA CORPORATION, § § Defendant. § DALLAS COUNTY, TEXAS ORIGINAL PETITION TO MODIFY, REFORM, OR TERMINATE TRUST PURSUANT TO TEXAS PROPERTY CODE SECTION 112.054(b) AND FOR DECLARATORY JUDGMENT PURSUANT TO CHAPTER 37 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Walter Ellis Sistrunk, Jr. (“Plaintiff”), Plaintiff herein, and files his Original Petition to Modify, Reform, or Terminate the Sistrunk Family Trust Pursuant to Texas Property Code Section 112.054(b) and for Declaratory Judgment Pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code, and, in support hereof, would show the Court the following: I. DISCOVERY 1. As provided by Rule 190 of the Texas Rules of Civil Procedure, Plaintiff intends to conduct discovery under Level 3. ll. PARTY IDENTIFICATION 2. Plaintiff is Walter E. Sistrunk, Jr., an individual who resides at 13971 Wetherburn Street, Waldorf, Maryland 20601. The last three digits of Plaintiff’s Maryland driver’s license number are 726. The last three digits of Plaintiff’s Social Security number are Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 1 of 7 188. 3. Defendant is Bank of America Corporation (“Defendant”), a Delaware corporation whose principal office is located at 401 North Tryon Street, Suite 300, Charlotte, North Carolina 28202-2123. Defendant may be served through Defendant’s registered agent for service, C T Corporation System, whose address is 1999 Bryan Street, Suite 900, Dallas, Texas 75201. Ill. JURISDICTION AND VENUE 4. This Court has jurisdiction over Defendant because said Defendant purposely availed itself of the privilege of conducting activities in the State of Texas and established minimum contacts sufficient to confer jurisdiction over said Defendant. Defendant’s contacts with the State of Texas are continuous and systematic. 5. This Court has jurisdiction over the subject matter of this cause under Section 32.006(1 )-(2) of the Texas Estates Code. 6. Venue is proper in Dallas County, Texas, because the events giving rise to this cause of action occurred within Dallas County. 7. The damages sought are within the jurisdictional limits of this Court. Plaintiff seeks damages less than $250,000.00 and injunctive relief. IV. FACTS 8. On or about April 5, 1984, Walter Ellis Sistrunk (“Testator”), a.k.a. W.E. Sistrunk, executed a will dated April 5, 1984 (“Will”). A copy of the Will is attached hereto as A and incorporated by reference. In the Will, Testator directed that a testamentary trust, named the Sistrunk Family Trust (“SFT”), be created to administer the property described in “Item Seven” of the Will. Testator named RepublicBank Dallas, N.A., as the original Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 2 of 7 trustee of the trust. Testator named his “issue” and the Sistrunk Children Investment Trust (“SCIT”) as the net income beneficiaries of the trust. A copy of the SCIT trust agreement is attached hereto as Exhibit B and incorporated by reference. The Wi|| directed that the net income of the SFT be distributed on at least a quarterly basis, with 50 percent distributed to Testator’s issue, per stirpes, and the other 50 percent distributed to the SCIT. Testator’s implied purpose in creating the SFT and SCIT was to provide a continuing income for the support and maintenance of Testator’s children and other descendants. 9. The trust agreement for the SCIT, dated April 4, 1984, names RepublicBank Dallas, N.A., as the Trustee for the SCIT. The SCIT, unlike the Will, specifically names Testator’s children, Walter Ellis Sistrunk, Jr., Emily Baldwin Sistrunk Hodo, and Berkley Ware Sistrunk Ostrander, as the beneficiaries of the SCIT. 10. Testator died in 1987. The Will was admitted to probate, and the SFT was established and funded with estate assets in accordance with the Will. RepublicBank Dallas, N.A., began administering the SFT as the initial Trustee. 11. Following a series of mergers and acquisitions, Bank of America, N.A., became the successor in interest to RepublicBank Dallas, N.A., and is presently the Trustee of both the SFT and the SCIT. 12. In the time following Testator’s death, the amount of net income paid to the beneficiaries by the SFT steadily decreased in value. At present, it pays the beneficiaries only a small amount, if anything, each year. 13. Plaintiff contacted Defendant to request termination of the SFT and distribution of the trust assets to the Testator’s descendants. Defendant refused to distribute the entire Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 3 of 7 trust corpus to the Testator’s descendants and stated that it could only terminate the SFT by distributing half of the corpus to the SCIT. 14. When Plaintiff disagreed with the Defendant's interpretation of the Will, Defendant informed Plaintiff that it would take no further action toward termination of the SFT and advised Plaintiff to seek counsel if he wished to further pursue termination. V. CAUSES OF ACTION A. Modification, Reformation, or Termination of Trust 15. Plaintiff brings this action for modification, reformation, or termination of the Trust pursuant to Section 112.054 of the Texas Property Code. 16. The primary purpose of the SFT is to provide the Testator’s children and other descendants with income for their support and maintenance during the children’s lifetime. Because of the present circumstances surrounding trust administration, the SFT is failing to fulfill this primary purpose. 17. The purposes of the SFT have been fulfilled or have become illegal or impossible to fulfill. 18. Because of circumstances not known to or anticipated by the Testator, an order modifying, reforming, or terminating the SFT will further the purposes of the SFT. 19. Continuance of the SFT is not necessary to achieve any material purpose of the SFT. 20. The order sought by Plaintiff is not inconsistent with a material purpose of the SFT. 21. Plaintiff anticipates that all beneficiaries of the SFT will consent to issuance of the order sought herein. 22. For these reasons, Plaintiff requests that the Court issue an Order: Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 4 of 7 a. Modifying Item Eleven of the Will to clarify that the “person or persons, per stirpes, then entitled to income” refers only to the Testator’s descendants entitled to income at the time of termination; b. Directing Defendant to disburse the entire remaining corpus of the SFT to the Testator’s descendants, per stirpes; and c. Terminating the SFT. B. Declaratory Judgment 23. Plaintiff brings this action for declaratory judgment pursuant to Chapter 37.005 of the Texas Civil Practice and Remedies Code. 24. As part of the Will, the Testator states in Item Eleven that, in the event of early termination under the provisions of that section, the corpus of the SFT is to be distributed “to the person or persons, per stirpes, then entitled to the income.” This language referring to “person or persons, per stirpes,” should be interpreted to mean natural persons named in the Will and not the SFT or the Defendant. 25. Atrust is not a legal person or entity; rather, it is a fiduciary relationship wherein a trustee holds legal title to property for the benefit of one or more beneficiaries. 26. Further, the term “per stirpes" is not used in relation to trusts or trustees. lt represents an election by a testator as to how beneficiaries’ and their heirs’ shares are calculated for the purposes of distribution. It is virtually never used to refer to anything other than natural persons in their individual capacity. 27. Finally, the phrase “person or persons, per stirpes, then entitled to income” parallels Testator’s use of the phrase “per stirpes, unto my issue who are living at the time such income is distributable during the continuation of this Sistrunk Family Trust” in Item Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 5 of 7 Seven of the Will when he designates the beneficiaries who are natural persons entitled to a share of net income generated by the SFT. 28. For these reasons, Plaintiff asks the Court to render declaratory judgment interpreting the phrase “person or persons, per stirpes, then entitled to income” to refer only to natural persons who are the living issue of the Testator and not the SFT or the Trustee. VII. ATTORNEY’S FEES AND COSTS 29. Plaintiff requests judgment for reasonable and necessary attorney’s fees and costs under Sections 37.009 of the Texas Civil Practice and Remedies Code. VIII. REQUIRED INITIAL DISCLOSURES 30. As provided in Rule 194 of the Texas Rules of Civil Procedure, required initial disclosures of all items listed in Rule 194.2 must be made within 30 days after the filing of the first answer unless a different time is set by agreement of the parties or court order. IX. RULE 193.7 NOTICE 31. Notice is hereby given that any document produced in response to written discovery is subject to use as authenticated evidence in any pretrial proceeding or at trial unless the producing party objects to the authenticity of said document in accordance with Rule 193.7 of the Texas Rules of Civil Procedure. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court renderjudgment for Plaintiff and against Defendant; that the Court issue an order for modification, reformation, or termination consistent with the request made herein; that Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 6 of 7 the Court render declaratoryjudgment consistent with the request made herein; that the Court grant Plaintiff all other relief hereinabove requested; and that the Court grant Plaintiff such other and further relief to which Plaintiff may be justly entitled at law or in equity. Respectfully submitted, UDESHI LAW FIRM PLLC 2201 Main Street Suite 600 Dallas, Texas 75201 Tel. 817-770-0694 Fax. 817-770-0482 By: /s/ Kunal Udeshi Kunal Udeshi SBN: 24076744 kunal@udeshilaw.com Original Petition to Modify, Reform, or Terminate Trust and for Declaratory Judgment Page 7 of 7