Preview
11-2019-CA-004794-0001-XX
Filing # 99978185 E-Filed 12/09/2019 10:17:35 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL ACTION
RUSSELL D. PARKS,
Plaintiff,
vs. CASE NO.
JEFFREY G. PARKS,
Defendant.
COMPLAINT
COMES NOW the Plaintiff, Russell D. Parks, who by and through his undersigned
attorney sues the Defendant, Jeffrey G. Parks, and alleges as follows:
COUNTI
1. This is an action for damages that exceeds $15,000.00.
2. The Plaintiff, Russell D. Parks and the Defendant, Jeffrey G. Parks are the only
surviving children of Elva Mae Parks, a single woman, who died on September 6, 2019 at the age
of 91, as shown by-a copy of her death certificate attached hereto as Composite Exhibit “A”.
3. Prior to her death, Elva Mae Parks, along with her husband, Kendrick Wellman Parks,
executed the Kendrick Wellman Parks and Elva Mae Parks Joint Revocable Trust Dated 4/11/14
(“Trust”), Composite Exhibit “B” attached.
4. On April 11, 2014, Elva Mae Parks executed her Last Will and Testament (“Will”),
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 12/09/2019 04:36:29 PMComposite Exhibit “C” attached.
5. On December 18, 2017, the Defendant, Jeffrey G. Parks, was appointed Co-Trustee of
the Trust.
6. On April 5, 2018, Elva Mae Parks, and the Defendant, Jeffrey G. Parks, Co-Trustee,
executed a First Amendment to the Kendrick Wellman Parks and Elva Mae Parks Joint
Revocable Trust Dated 4/11/14, Composite Exhibit “D” attached.
7. Atall times material hereto the Defendant, Jeffrey G. Parks, held a Power of Attorney
from Elva Mae Parks, enabling Jeffrey G. Parks to control the assets of Elva Mae Parks. A copy
of the Durable Power of Attorney executed on April 11, 2014 is attached hereto as Composite
Exhibit “E”.
8. As the agent of Elva Mae Parks, by virtue of the Power of Attorney he held from Elva
Mae Parks, the Defendant was a fiduciary and had duties as set out in Florida Statute 709.2114
which include inter alia, the following:
a. Not to act contrary to the principal’s (Elva Mae Parks’) reasonable expectations.
b. To act in good faith.
c. Not to act contrary to the principal’s best interest.
d. To attempt to preserve the principal’s estate plan.
e. To keep a record of all receipts, disbursements and transactions made on behalf of
the principal.
f. To act solely for the sole benefit of the principal.
g To act so as to not to create a conflict of interest that impairs the agent’s ability to
act impartially in the principal’s best interest.9. The Plaintiff verily believes and therefore alleges that the Defendant, Jeffrey G. Parks,
violated his fiduciary duties as set forth in Florida Statute 709.2114 as follows:
a
By using his Power of Attorney or other artifice to retitle five bank accounts with
a cumulative value of approximately $540,000.00 owned by Elva Mae Parks to
designate himself as a payable on death beneficiary with the result that said
monies amounting to approximately $540,000.00 did not upon the death of Elva
Mae Parks pour over through Elva Mae Parks’ Will into the Trust to be divided
pursuant to the estate plan of Elva Mae Parks expressed in her Trust.
By failing to keep a record of all receipts, disbursements and transactions made
upon behalf of the principal, Elva Mae Parks, including payments to Jeffrey G.
Parks and/or his spouse for services rendered and showing the disposition of
personal property including motor vehicles owned by Elva Mae Parks, together
with other personal property.
10. The Plaintiff verily believes and therefore alleges that the Defendant, Jeffrey G.
Parks, violated his fiduciary duty stemming from his holding of a Power of Attorney from Elva
Mae Parks and in so doing damaged the Plaintiff in the following ways:
a.
By causing five accounts owned by Elva Mae Parks to be titled as payable on death
accounts with him as beneficiary, thus preventing approximately $540,000.00 from
flowing through the Will of Elva Mae Parks and pouring over to the Trust where
the Plaintiff would have a right to receive one-fifth of said monies.
Diminishing the Estate of Elva Mae Parks by converting, wasting or otherwise
failing to maintain tangible personal property owned by Elva Mae Parks at the time
of her death, half the value of which would have passed to the Plaintiff under the
terms of the Will.
By inducing Elva Mae Parks to amend the trust (First Amendment, Exhibit “C”
attached) to provide that he alone would receive his devise (2 of 5 total shares)
immediately upon death while the Plaintiff and his sons, John and Daniel, would
receive their devises in annuity payments for fifteen or twenty years as originally
provided in the Trust for all beneficiaries, including the Defendant.
WHEREFORE, Plaintiff demands judgment for damages.COUNT I
Plaintiff, Russell D. Parks, sues the Defendant, Jeffrey G. Parks, and alleges:
I.
This is an action for damages that exceed $15,000.00.
12. The Plaintiff realleges paragraphs | through 10.
13. Atall times material hereto, Elva Mae Parks, was of advanced age (91), suffered
multiple physical ailments, was very hard of hearing, extremely forgetful, subject to delusions, on
medications, confined to a wheelchair and subject to falls.
14. The Plaintiff verily believes and alleges that the titling of multiple bank accounts
having a cumulative value of approximately $540,000.00 as payable on death to Jeffrey G. Parks
(see Exhibit "F" attached) was the product of undue influence exercised by Jeffrey G. Parks on
Elva Mae Parks because of the following:
a.
As shown by Exhibit "F" attached, Jeffrey G, Parks, was a payable on death
beneficiary at the time of the death of Elva Mae Parks, with the result being that
the estate plan set forth in the Trust, which by its terms gives Jeffrey G Parks two-
fifths of the estate with one-fifth going to the Plaintiff, one-fifth to the Plaintiff's
son, John K. Parks and one-fifth to the Plaintiff's son, Daniel R. Parks, was
completely and materially changed,
Elva Mae Parks’ mental and physical condition as alleged above made her
incapable of realizing/understanding the effect on her estate plan of making Jeffrey
G. Parks a payable on demand beneficiary of approximately $540,000.00 (5
accounts shown on Exhibit "F" attached).
As a result of his holding a Power of Attorney from Elva Mae Parks and his
relationship to her (son), Elva Mae Parks reposed confidence and trust in the
Defendant, Jeffrey G. Parks, which made her vulnerable to his suggestions and
imposes upon Jeffrey G. Parks a burden of explaining his role in his mother's
affairs, including the titling of her bank accounts cumulatively amounting to
approximately $540.00 (5 accounts see Exhibit "F" attached) as a payable on death
beneficiary which benefitted only Jeffrey Parks and completely changed thepreexisting estate plan set forth in the Trust under which Jeffrey G. Parks would
have received only 40% of the approximately $540,000.0 he received pursuant to
the payable on death provisions of the accounts.
15. The Defendant, Jeffrey G. Parks, by inducing Elva Mae Parks to title five of her bank
accounts amounting to approximately $540,000.00 cumulatively, with him as a payable on death
beneficiary, damaged the Plaintiff in that those monies (approximately $540,000.00) would have
flowed through the Will into the Trust which by its terms would have given the Plaintiff one-fifth
of that amount (approximately $108,000.00) and would have given each of the Plaintiff's sons,
John and Daniel Parks, one-fifth each with Jeffrey G. Parks receiving only two-fifths of the
$540,000.00.
WHEREFORE, Plaintiff demands judgment for damages.
COUNT IIT
Plaintiff, Russell D. Parks, sues Defendant, Jeffrey G. Parks, and alleges as follows:
16. The Plaintiff realleges paragraphs 1 through 15 above.
17. Atall times material hereto the Defendant, Jeffrey G. Parks, was Co-Trustee of the
Trust beginning December 18, 2017.
18. Atall times material hereto the Plaintiff, Russell D. Parks, was and is a beneficiary of
the Trust/Amended Trust (see Exhibits “A” and “B”).
19. Atall times material hereto the Defendant, Jeffrey G. Parks, had a duty pursuant to
Florida Statute 736.0802 to manage the Trust solely in the interest of the beneficiaries including
the Plaintiff.
20. The Defendant, Jeffrey G. Parks, violated his duty as Trustee to act solely in theinterest of the Plaintiff and other beneficiaries by either inducing Elva Mae Parks to title five of
her bank accounts with a cumulative balance of approximately $540,000.00 as payable on death
accounts with the Defendant as the payable on death beneficiary or retitling the five bank accounts
totaling approximately $540,000.00 by use of his Power of Attorney as payable on death with the
Defendant as beneficiary, and thereby reducing the amounts the Plaintiff and his sons would have
received had the monies flowed through the pour over Will of Elva Mae Parks (Exhibit “C”) and
into the Trust which by its terms would have given the Plaintiff one-fifth of those monies.
WHEREFORE, Plaintiff demands damages and an accounting as to those monies.
COUNT IV
COMES NOW Russell D. Parks, by and through his undersigned attorney, and sues the
Defendant, Jeffrey G. Parks, and alleges:
21. This is an action for declaratory relief.
22. The Plaintiff realleges paragraphs 1 through 20 above.
23. A controversy within the jurisdictional amount of this Court has arisen between the
Plaintiff and Defendant, as a result of which the Plaintiff is in doubt as to his rights.
24, The Plaintiff and Defendant are the only surviving children of Elva Mae Parks who
died on September 6, 2019. Prior to her death, Elva Mae Parks, and her now deceased husband,
Kendrick Wellman Parks, who previously deceased her, executed the Trust (Exhibit “B”
attached). Also, on April 11, 2014, Elva Mae Parks executed her Last Will and Testament
(Exhibit “C” attached). On December 18, 2017, the Defendant, Jeffrey G. Parks, was appointed
Co-Trustee of the Trust. On April 5, 2018, the Trust was amended by Elva Mae Parks and JeffreyG. Parks acting as Co-Trustee (Exhibit “D” attached). The testamentary portion of the Trust
provides for disposition of Elva Mae Parks’ estate in five equal shares with Defendant, Jeffrey G.
Parks receiving two shares, while the Plaintiff, Russell D. Parks and his sons, John Parks and
Daniel Parks each receive one share. Each share amounts to one-fifth of $866,765.37 or
$173,353.07 according to the Asset Worksheet furnished the Plaintiff (Exhibit “F” attached). By
virtue of five accounts being titled as payable on death with Jeffrey G. Parks as beneficiary,
Jeffrey G. Parks received an additional $540,311.23, as shown on Exhibit “F” attached together
with an additional $50,000.00 bequeathed to him under the terms of the Trust.
25. The Plaintiff contends that the five accounts totaling approximately $540,000.00, as
shown on Exhibit “F” attached which the Defendant received as a payable on death beneficiary
should rightfully pass through the deceased, Elva Mae Parks’ Will (a pour over provision) and be
distributed pursuant to the estate plan in the Trust because the Plaintiff contends that the titling of
the five bank accounts (with a cumulative value of approximately $540,000.00) as payable on
death with the Defendant as beneficiary was the result of undue influence, and/or violation of the
Defendant’s fiduciary duty as the holder of a Power of Attorney from Elva Mae Parks, and/or a
result of the Defendant’s violation of his fiduciary duty as Co-Trustee of the Trust to Plaintiff as a
beneficiary of the Trust.
26. The Defendant contends that he was properly a beneficiary of the payable on death
titling of the five accounts totaling approximately $540,000.00 and that those monies properly
passed to him outside of probate and therefore did not pour over under the Will to the benefit of
the Will of the deceased, Elva Mae Parks, into the Trust for distribution pursuant to the terms ofthe Trust.
27. Unless the Court grants relief, the Plaintiff will not know whether approximately
$540,000.00 (5 accounts with payable on death designations with the Defendant as beneficiary)
was lawfully received by the Defendant or whether the Defendant is obligated to handle these
monies consistent with the Will of the deceased and her Trust.
WHEREFORE, Plaintiff requests that the Court enter judgment declaring that the monies
received by the Defendant, Jeffrey G. Parks, belong to the Estate of Elva Mae Parks and are
subject to a constructive trust in favor of the estate together with damages in favor of the Plaintiff
and other relief the Court deems mete or proper.
Lvs feed
DENNIS L. SAR ESQ.,
AVERY, WHIGHAM & O ESeree PA.
Florida Bar No. 178618
P.O. Box 610
Fort Myers, FL 33902-0610
Telephone: (239) 334-7040
Facsimile: 239) 334-6258
Primary email: dennisavery@awwlegal.com
Secondary email: awwpa3347040@yahoo.comSECURED|
KENDRICK WELLMAN PARKS AND
ELVA MAE PARKS JOINT REVOCABLE TRUST
DATED 4/11/14
KENDRICK WELLMAN PARKS and ELVA MAE PARKS, as Grantors,
KENDRICK WELLMAN PARKS, and ELVA MAE PARKS, as Trustees.
5
Weta
LAW FIRM #[“
1185 Immokalee Road, Suite 110
Naples, Florida 34110
239.449.6150 (phone)
877.646.0560 (fax)
www.nicilawfirm.com
COMPOSITE EXHIBIT "B"TABLE OF CONTENTS
ARTICLE I. REVOCATION. ..csscsscsssssssesnssesssssncssesssssosnsossvseneceresessesea cvesesconssecensenssossceee IL
ARTICLE If. JOINT TRUST... 1
ARTICLE IJ. ADMINISTRATION OF KENDRICK WELLMAN PARKS’
ARTICLE IV. ADMINISTRATION OF ELVA MAE PARKS’ PROPERTY.......... 6
ARTICLE V. KENDRICK WELLMAN PARKS’ DEBTS, DEATH TAXES AND
EXPENSES. .....sessssossossscsesssossanencencsosossnsressesnsnseosscesssnssseosenesasngnecnsencersensnseece: eotcscosenceneneene 10
ARTICLE VI. ELVA MAE PARKS’ DEBTS, DEATH TAXES AND EXPENSES.
eae eoesnssoesseseonecouesscescensessesoneen eassssoesceneossenscaneanssnsonsones essssasesstssoseraneesscesneerescansersesenee LZ
ARTICLE VU. ADDITIONAL DISPOSITIVE PROVISIONG.........sssssssecsssssseeseeees 13
ARTICLE VII. APPOINTMENT OF FIDUCTARIES. .....ssccsssscssssssssssssonnesssnsesssnvees 15
ARTICLE IX. ADMINISTRATIVE PROVISIONS. ...cssssscsssscsssecrssecerserecssesensecesssvees 16KENDRICK WELLMAN PARKS AND ELVA MAE PARKS
JOINT REVOCABLE TRUST
We, KENDRICK WELLMAN PARKS and ELVA MAE PARKS, both of
Estero, Florida, as the “Grantors,” enter into the following Agreement, dated April 11, 2014,
with KENDRICK WELLMAN PARKS and ELVA MAE PARKS of Estero, Florida,
(hereinafter collectively called “our Trustees”),
We deliver and assign to the Trustees the property specified in Schedule A to this
Agreement, which includes the separate property of KENDRICK WELLMAN PARKS and the
separate property of ELVA MAE PARKS. Our Trustees shall continue to hold the property in
trust, together with any property added to the trust estate, as follows:
Article I. Revocation.
While both Grantors are living, either Grantor may revoke this Joint Trust and
acquire up to one-half of the total trust estate. This power may be exercised in whole or in part
at any time and without the consent of the Trustees, the other Grantor, or anyone else, but the
revocation must be in writing. If a Grantor revokes in part while both Grantors are living and
withdraws less than one-half of the trust assets, the Trustees also shall distribute the same value
to the other Grantor. In making distributions following a revocation or upon the death of a
Grantor, the Trustees may allocate assets disproportionately among the portions.
Article II. Joint Trust.
A. Distribution of Article If Trust During Our Lives. During our
lifetimes, this Revocable Trust shall be referred to as our Joint Trust. During the period of
time when we are both living, the Trustees shall pay or apply to, or for our joint benefit (a) all
or any part of the net income and principal of the trust estate that the Trustees consider
advisable for our maintenance in health and reasonable comfort, or support in our accustomed
manner of living, and (b) such amounts from the net income and principal of the trust estate as
we request. Any undistributed income shall be added to principal.B. Termination of Article II Trust. Upon the death of the first of us to die,
the Article If Trust shall terminate and the portion of the trust estate that KENDRICK
WELLMAN PARKS could revoke shall be disposed of pursuant to Article If]. The remaining
assets of the Article II Trust, that is the portion of the trust estate that ELVA MAE PARKS
could revoke, shall be disposed of pursuant to Article IV.
Article HI. Administration of Kendrick Wellman Parks’ Property.
A. Distribution if Kendrick Wellman Parks Was Not First To Die. If
KENDRICK WELLMAN PARKS was not the first of us to die, then the property to be
disposed of pursuant to this Article shall be disposed of as follows:
1. Distributions During Lifetime. During KENDRICK WELLMAN
PARKS? lifetime, the Trustees shall pay or apply to, or for the benefit of, KENDRICK
WELLMAN PARKS (a) all or any part of the net income and principal of this separate trust
that the Trustees consider advisable for KENDRICK WELLMAN PARKS? maintenance in
health and reasonable comfort, or support in KENDRICK WELLMAN PARKS’ accustomed
manner of living, and (b) such amounts from the net income and principal of this separate trust
as KENDRICK WELLMAN PARKS requests. Any undistributed income shall be added to
principal.
2. Distributions at Subsequent Death. Upon KENDRICK
WELLMAN PARKS’ subsequent death, this separate trust (including any property added to
this separate trust by reason of KENDRICK WELLMAN PARKS? death), which shall be
referred to during the period of KENDRICK WELLMAN PARKS’ estate administration and
prior to the distribution of KENDRICK WELLMAN PARKS’ residuary estate, as the
"Kendrick Wellman Parks Terminating Trust,” shall be administered as follows:
a) Payment of Kendrick Wellman Parks’ Debts, Death
Taxes and Expenses. The Trustees shall pay KENDRICK WELLMAN PARKS?’ debts, death
taxes and expenses and any preresiduary gifts under KENDRICK WELLMAN PARKS?’ Willas provided by the Article of this Agreement entitled "Kendrick Wellman Parks’ Debts, Death
Taxes and Expenses."
b) Balance of Kendrick Wellman Parks’ Terminating
Trust. The balance of the Kendrick Wellman Parks Terminating Trust remaining after any
payments or distributions permitted or required by any preceding subsection of section A of
this Article, referred to in this Agreement as KENDRICK WELLMAN PARKS’ “residuary
estate,” shall be distributed as provided in section C of this Article.
B. Distribution if Kendrick Wellman Parks Was First To Die. If
KENDRICK WELLMAN PARKS was the first of us to die, then upon KENDRICK
WELLMAN PARKS’ death, KENDRICK WELLMAN PARKS? trust property (including any
property added to the trust by reason of KENDRICK WELLMAN PARKS? death), which shall
be referred to during the period of KENDRICK WELLMAN PARKS’ estate administration
and prior to the distribution of KENDRICK WELLMAN PARKS’ residuary estate, as the
"Kendrick Wellman Parks Terminating Trust," shall be administered as follows:
1. Payment of Kendrick Wellman Parks’ Debts, Death Taxes and
Expenses. The Trustees shall pay KENDRICK WELLMAN PARKS’ debts, death taxes and
expenses and any preresiduary gifts under KENDRICK WELLMAN PARKS’ Will as
provided by the Article of this Agreement entitled "Kendrick Wellman Parks’ Debts, Death
Taxes and Expenses."
2, Balance of Kendrick Wellman Parks’ Terminating Trust. The
balance of the KENDRICK WELLMAN PARKS Terminating Trust remaining after any
payments or distributions permitted or required by any preceding subsection of section B of
this Article, referred to in this Agreement as KENDRICK WELLMAN PARKS? "residuary
estate," shall be distributed as provided in section C of this Article.
C. Kendrick Wellman Parks’ Residuary Estate. KENDRICK
WELLMAN PARKS’ residuary estate shall be disposed of as follows:1 Distribution to Spouse. If ELVA MAE PARKS survives
KENDRICK WELLMAN PARKS, KENDRICK WELLMAN PARKS’ residuary estate shall
be distributed to ELVA MAE PARKS, to be added ELVA MAE PARKS? property under
subsection A(1) of Article IV.
2. Balance of Kendrick Wellman Parks’ Residuary Estate. If
ELVA MAE PARKS does not survive KENDRICK WELLMAN PARKS, the balance of
KENDRICK WELLMAN PARKS’ residuary estate shall be disposed of as follows:
a) Cash Distribution. The Trustees shall distribute Fifty
Thousand Dollars ($50,000) to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’
son, JEFFREY G. PARKS, if he survives, KENDRICK WELLMAN PARKS.
b) Distribution of Balance. The balance shall be divided into
as many equal shares as are necessary to provide for such of the following distributions as have
not lapsed, and such shares shall be disposed of as follows:
(1) Two (2) such shares to KENDRICK WELLMAN
PARKS’ and ELVA MAE PARKS? son, JEFFREY G. PARKS, if he survives KENDRICK
WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such
shares outright to JEFRREY G. PARKS, but shall instead purchase a single premium
immediate annuity to provide JEFFREY G. PARKS with monthly income for a period of
fifteen (15) years. When obtaining the single premium immediate annuity for JEFFREY G.
PARKS, the Trustees shall irrevocably designate primary beneficiaries and contingent
beneficiaries in the event JEFFREY G. PARKS does not survive the fifteen (15) year term of
the single premium immediate annuity. The primary equal beneficiaries shall be RUSSELL D.
PARKS, JOHN K. PARKS and DANIEL R. PARKS, if they are living at the death of
JEFFREY G. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he
is living at the death of JEFFREY G. PARKS, and any other great-grandchildren of
KENDRICK WELLMAN PARKS and ELVA MAE PARKS who are living at the death of
JEFFREY G. PARKS.(2) One (1) such share to KENDRICK WELLMAN
PARKS’ and ELVA MAE PARKS’ son, RUSSELL D. PARKS, if he survives KENDRICK
WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such
shares outright to RUSSELL D. PARKS but shall instead purchase a single premium
immediate annuity to provide RUSSELL D. PARKS with monthly income for a period of
fifteen (15) years. When obtaining the single premium immediate annuity for RUSSELL D.
PARKS, the Trustees shall shall irrevocably designate primary beneficiaries and contingent
beneficiaries in the event RUSSELL D. PARKS does not survive the fifteen (15) year term of
the single premium immediate annuity. The primary equal beneficiaries shall be JEFFREY G.
PARKS, JOHN K. PARKS and DANIEL R. PARKS, if they are living at the death of
RUSSELL D. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he
is living at the death of RUSSELL D. PARKS, and any other great-grandchildren of
KENDRICK WELLMAN PARKS and ELVA MAE PARKS, who are living at the death of
RUSSELL D. PARKS.
(3) One (1) such share to KENDRICK WELLMAN
PARKS’ and ELVA MAE PARKS? grandson, JOHN K. PARKS, if he survives KENDRICK
WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such
shares outright to JOHN K. PARKS, but shall instead purchase a single premium immediate
annuity to provide JOHN K. PARKS with monthly income for a period of twenty (20) years.
When obtaining the single premium immediate annuity for JOHN K. PARKS, the Trustees
shall shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event
JOHN K. PARKS does not survive the twenty (20) year term of the single premium immediate
annuity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JEFFREY G.
PARKS and DANIEL R. PARKS, if they are living at the death of JOHN K. PARKS. The
contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of
JOHN K. PARKS, and any other great-grandchildren of KENDRICK WELLMAN PARKS
and ELVA MAE PARKS, who are living at the death of JOHN K. PARKS.(4) One (1) such share to KENDRICK WELLMAN
PARKS’ and ELVA MAE PARKS’ grandson, DANIEL R. PARKS, if he survives
KENDRICK WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not
distribute such shares outright to DANIEL R. PARKS, but shall instead purchase a single
premium immediate annuity to provide DANIEL R. PARKS with monthly income for a period
of twenty (20) years. When obtaining the single premium immediate annuity for DANIEL R.
PARKS, the Trustees shall irrevocably designate primary beneficiaries and contingent
beneficiaries in the event DANIEL R. PARKS does not survive the twenty (20) year term of
the single premium annity. The primary equal beneficiaries shall be RUSSELL D. PARKS,
JOHN K. PARKS and JEFFREY G. PARKS, if they are living at the death DANIEL R.
PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the
death of DANIEL R. PARKS, and any other great-grandchildren of KENDRICK WELLMAN
PARKS and ELVA MAE PARKS, who are living at the death of DANIEL R. PARKS,
Article IV. Administration of Elva Mae Parks’ Property.
A. Distribution if Elva Mae Parks Was Not First To Die. If ELVA MAE
PARKS was not the first of us to die, then the property to be disposed of pursuant to this
Article shall be disposed of as follows:
1. _ Distributions During Lifetime. During ELVA MAE PARKS?
lifetime, the Trustees shall pay or apply to, or for the benefit of, ELVA MAE PARKS (a) all or
any part of the net income and principal of this separate trust that the Trustees consider
advisable for ELVA MAE PARKS’ maintenance in health and reasonable comfort, or support
in ELVA MAE PARKS? accustomed manner of living, and (b) such amounts from the net
income and principal of this separate trust as ELVA MAE PARKS requests. Any
undistributed income shall be added to principal.
2. Distributions at Subsequent Death. Upon ELVA MAE PARKS?’
subsequent death, this separate trust (including any property added to this separate trust by
reason of ELVA MAE PARKS? death), which shall be referred to during the period of ELVAMAE PARKS?’ estate administration and prior to the distribution of ELVA MAE PARKS’
residuary estate, as the "Elva Mae Parks Terminating Trust," shall be administered as follows:
a) Payment of Elva Mae Parks’ Debts, Death Taxes and
Expenses. The Trustees shall pay ELVA MAE PARKS’ debts, death taxes and expenses and
any preresiduary gifts under ELVA MAE PARKS?’ Will as provided by the Article of this
Agreement entitled "ELVA MAE PARKS’ Debts, Death Taxes and Expenses."
b) Balance of Elva Mae Parks’ Terminating Trust. The
balance of the Elva Mae Parks Terminating Trust remaining after any payments or
distributions permitted or required by any preceding subsection of section A of this Article,
referred to in this Agreement as ELVA MAE PARKS’ "residuary estate," shall be distributed
as provided in section C of this Article.
B. Distribution if Elva Mae Parks Was First To Die. If ELVA MAE
PARKS was the first of us to die, then upon ELVA MAE PARKS?’ death, ELVA MAE
PARKS’ trust property (including any property added to the trust by reason of ELVA MAE
PARKS?’ death), which shall be referred to during the period of ELVA MAE PARKS’ estate
administration and prior to the distribution of ELVA MAE PARKS? residuary estate, as the
"Elva Mae Parks Terminating Trust," shall be administered as follows:
1. Payment of Elva Mae Parks’ Debts, Death Taxes and Expenses.
The Trustees shall pay ELVA MAE PARKS? debts, death taxes and expenses and any
preresiduary gifts under ELVA MAE PARKS’ Will as provided by the Article of this
Agreement entitled “Elva Mae Parks’ Debts, Death Taxes and Expenses."
2. Balance of Elva Mae Parks’ Terminating Trust. The balance of
the Elva Mae Parks Terminating Trust remaining after any payments or distributions permitted
or required by any preceding subsection of section B of this Article, referred to in this
Agreement as ELVA MAE PARKS? "residuary estate," shall be distributed as provided in
section C of this Article.C. Elva Mae Parks’ Residuary Estate. ELVA MAE PARKS’ residuary
estate shall be disposed of as follows:
1. Distribution to Spouse. If KENDRICK WELLMAN PARKS
survives ELVA MAE PARKS, ELVA MAE PARKS’ residuary estate shall be distributed to
KENDRICK WELLMAN PARKS, to be added to KENDRICK WELLMAN PARKS’
property under subsection A(1) of Article IIT.
2. Balance of Elva Mae Parks’ Residuary Estate. If KENDRICK
WELLMAN PARKS does not survive ELVA MAE PARKS, the balance of ELVA MAE
PARKS’ residuary estate shall be disposed of as follows:
a) Cash Distribution. The Trustees shall distribute Fifty
Thousand Dollars ($50,000) to ELVA MAE PARKS’ and KENDRICK WELLMAN PARKS’
and son, JEFFREY G. PARKS, if he survives, ELVA MAE PARKS.
b) __ Distribution of Balance. The balance shall be divided into
as many equal shares as are necessary to provide for such of the following distributions as have
not lapsed, and such shares shall be disposed of as follows:
(1) Two (2) such shares to ELVA MAE PARKS? and
KENDRICK WELLMAN PARKS?’ son, JEFFREY G. PARKS, if he survives ELVA MAE
PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright
to JEFRREY G. PARKS, but shall instead purchase a single premium immediate annuity to
provide JEFFREY G. PARKS with monthly income for a period of fifteen (15) years. When
obtaining the single premium immediate annuity for JEFFREY G. PARKS, the Trustees shall
irrevocably designate primary beneficiaries and contingent beneficiaries in the event JEFFREY
G. PARKS does not survive the fifteen (15) year term of the single premium immediate
annuity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JOHN K. PARKS
and DANIEL R. PARKS, if they are living at the death of JEFFREY G. PARKS. The
contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death ofJEFFREY G. PARKS, and any other great-grandchildren of ELVA MAE PARKS and
KENDRICK WELLMAN PARKS who are living at the death of JEFFREY G. PARKS.
(2) One (1) such share to ELVA MAE PARKS’ and
KENDRICK WELLMAN PARKS’ son, RUSSELL D. PARKS, if he survives ELVA MAE
PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright
to RUSSELL D. PARKS but shall instead purchase a single premium immediate annuity to
provide RUSSELL D. PARKS with monthly income for a period of fifteen (15) years. When
obtaining the single premium immediate annuity for RUSSELL D, PARKS, the Trustees shall
shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event
RUSSELL D. PARKS does not survive the fifteen (15) year term of the single premium
immediate annuity. The primary equal beneficiaries shall be JEFFREY G. PARKS, JOHN K.
PARKS and DANIEL R. PARKS, if they are living at the death of RUSSELL D. PARKS. The
contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of
RUSSELL D. PARKS, and any other great-grandchildren of ELVA MAE PARKS and
KENDRICK WELLMAN PARKS, who are living at the death of RUSSELL D. PARKS.
(3) One (1) such share to ELVA MAE PARKS’ and
KENDRICK WELLMAN PARKS’ grandson, JOHN K. PARKS, if he survives ELVA MAE
PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright
to JOHN K. PARKS, but shall instead purchase a single premium immediate annuity to
provide JOHN K. PARKS with monthly income for a period of twenty (20) years. When
obtaining the single premium immediate annuity for JOHN K. PARKS, the Trustees shall shall
irrevocably designate primary beneficiaries and contingent beneficiaries in the event JOHN K.
PARKS does not survive the twenty (20) year term of the single premium immediate annuity.
The primary equal beneficiaries shall be RUSSELL D. PARKS, JEFFREY G. PARKS and
DANIEL R. PARKS, if they are living at the death of JOHN K. PARKS. The contingent equal
beneficiaries shall be JONAH M. PARKS, if he is living at the death of JOHN K. PARKS, andany other great-grandchildren of ELVA MAE PARKS and KENDRICK WELLMAN PARKS,
who are living at the death of JOHN K. PARKS.
(4) | One (1) such share to ELVA MAE PARKS?’ and
KENDRICK WELLMAN PARKS’ grandson, DANIEL R. PARKS, if he survives ELVA
MAE PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares
outright to DANIEL R. PARKS, but shall instead purchase a single premium immediate
annuity to provide DANIEL R. PARKS with monthly income for a period of twenty (20)
years. When obtaining the single premium immediate annuity for DANIEL R. PARKS, the
Trustees shall irrevocably designate primary beneficiaries and contingent beneficiaries in the
event DANIEL R. PARKS does not survive the twenty (20) year term of the single premium
annity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JOHN K. PARKS and
JEFFREY G. PARKS, if they are living at the death DANIEL R. PARKS. The contingent
equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of DANIEL R.
PARKS, and any other great-grandchildren of ELVA MAE PARKS and KENDRICK
WELLMAN PARKS, who are living at the death of DANIEL R. PARKS.
Article V. Kendrick Wellman Parks’ Debts, Death Taxes and Expenses.
Upon KENDRICK WELLMAN PARKS’ death, the Trustees shall pay to, or on
behalf of, the Personal Representative of KENDRICK WELLMAN PARKS?’ estate out of the
principal of the KENDRICK WELLMAN PARKS Terminating Trust, without proration or
apportionment against any beneficiary under this Agreement and without any statutory rights
to recover any amounts so paid, such amount or amounts as KENDRICK WELLMAN
PARKS’ Personal Representative requests in writing for KENDRICK WELLMAN PARKS’
funeral expenses, the expenses of administering KENDRICK WELLMAN PARKS’ estate, any
preresiduary gifts under KENDRICK WELLMAN PARKS’ Will and any estate, legacy,
succession, inheritance, transfer, excise, and other similar taxes (including any generation-
skipping transfer tax) imposed by reason of KENDRICK WELLMAN PARKS’ death, together
with any interest and penalties thereon, referred to in this Article as "death taxes," that are
required by KENDRICK WELLMAN PARKS’ Will to be paid out of KENDRICK
10WELLMAN PARKS’ general estate as an administration expense. If a Personal
Representative is appointed to administer KENDRICK WELLMAN PARKS’ estate, the
Trustees shall be under no duty to take part in determining any amount to be paid pursuant to
this paragraph and may rely upon the written certification of KENDRICK WELLMAN
PARKS’ Personal Representative as to the amount or amounts to be paid as herein authorized.
If no Personal Representative is appointed to administer KENDRICK
WELLMAN PARKS’ estate, the Trustees shall pay, out of the principal of the KENDRICK.
WELLMAN PARKS Terminating Trust, without proration or apportionment against any
beneficiary hereunder and without any statutory rights to recover any amounts so paid,
KENDRICK WELLMAN PARKS’ funeral expenses, the expenses of administering
KENDRICK WELLMAN PARKS’ estate, and any death taxes, other than any generation-
skipping transfer tax, imposed upon or with respect to KENDRICK WELLMAN PARKS’
property which passes (i) under this Agreement, (ii) from or under any retirement plan, account
or trust, owned by KENDRICK WELLMAN PARKS, whether or not qualified under sections
401, 401A, 403, 408 or 408A of the Code, which plan, account or trust, passes to, or for the
benefit of, whether outright or in trust, one or more of ELVA MAE PARKS and/or the
descendants of KENDRICK WELLMAN PARKS at KENDRICK WELLMAN PARKS’
death, or (iii) otherwise for which the federal estate tax marital deduction is allowed in
KENDRICK WELLMAN PARKS’ estate; provided, however, no payment under this Article
shall be made from or under any retirement plan, account or trust, owned by KENDRICK
WELLMAN PARKS, whether or not qualified under sections 401, 401A, 403, 408 or 408A of
the Code, and the Trustees are specifically authorized to borrow from any beneficiary or from
any other trust established by KENDRICK WELLMAN PARKS in order to make the
payments required by this Article.
All other death taxes shall be prorated and apportioned in the manner provided
by law.
In no event shall the Trustees contribute funds to KENDRICK WELLMAN
PARKS? estate or make any payment directly or indirectly if such contribution or payment
would subject to death taxes property that otherwise would not be subject to such taxes.
11All property directed to be distributed under subsection A(2) or section B of
Article IIJ, as the case may be, shall be distributed subject to any lien, mortgage or other debt
secured by such property. Otherwise, the Trustees in their sole discretion may (but shall not be
obligated to) pay out of the KENDRICK WELLMAN PARKS Terminating Trust any and all
of KENDRICK WELLMAN PARKS’ enforceable debts that are due and payable.
Article VI. Elva Mae Parks’ Debts, Death Taxes and Expenses.
Upon ELVA MAE PARKS’ death, the Trustees shall pay to, or on behalf of, the
Personal Representative of ELVA MAE PARKS: estate out of the principal of the ELVA
MAE PARKS Terminating Trust, without proration or apportionment against any beneficiary
under this Agreement and without any statutory rights to recover any amounts so paid, such
amount or amounts as ELVA MAE PARKS’ Personal Representative requests in writing for
ELVA MAE PARKS’ funeral expenses, the expenses of administering ELVA MAE PARKS’
estate, any preresiduary gifts under ELVA MAE PARKS’ Will and any estate, legacy,
succession, inheritance, transfer, excise, and other similar taxes (including any generation-
skipping transfer tax) imposed by reason of ELVA MAE PARKS? death, together with any
interest and penalties thereon, referred to in this Article as "death taxes," that are required by
ELVA MAE PARKS’ Will to be paid out of ELVA MAE PARKS’ general estate as an
administration expense. If a Personal Representative is appointed to administer ELVA MAE
PARKS’ estate, the Trustees shall be under no duty to take part in determining any amount to
be paid pursuant to this paragraph and may rely upon the written certification of ELVA MAE
PARKS’ Personal Representative as to the amount or amounts to be paid as herein authorized.
If no Personal Representative is appointed to administer ELVA MAE PARKS’
estate, the Trustees shall pay, out of the principal of the Elva Mae Parks Terminating Trust,
without proration or apportionment against any beneficiary hereunder and without any
Statutory rights to recover any amounts so paid, ELVA MAE PARKS? funeral expenses, the
expenses of administering ELVA MAE PARKS’ estate, and any death taxes, other than any
generation-skipping transfer tax, imposed upon or with respect to ELVA MAE PARKS’
property which passes (i) under this Agreemeni, (ii) from or under any retirement pian, account
12or trust, owned by ELVA MAE PARKS, whether or not qualified under sections 401, 401A,
403, 408 or 408A of the Code, which plan, account or trust, passes to, or for the benefit of,
whether outright or in trust, one or more of KENDRICK WELLMAN PARKS and/or the
descendants of ELVA MAE PARKS at ELVA MAE PARKS? death, or (iii) otherwise for
which the federal estate tax marital deduction is allowed in ELVA MAE PARKS’ estate;
provided, however, no payment under this Article shall be made from or under any retirement
plan, account or trust, owned by ELVA MAE PARKS, whether or not qualified under sections
401, 401A, 403, 408 or 408A of the Code, and the Trustees are specifically authorized to
borrow from any beneficiary or from any other trust established by ELVA MAE PARKS in
order to make the payments required by this Article.
All other death taxes shall be prorated and apportioned in the manner provided
by law.
In no event shall the Trustees contribute funds to ELVA MAE PARKS?’ estate or
make any payment directly or indirectly if such contribution or payment would subject to death
taxes property that otherwise would not be subject to such taxes.
All property directed to be distributed under subsection A(2) or section B of
Article IV of this Agreement, as the case may be, shall be distributed subject to any lien,
mortgage or other debt secured by such property. Otherwise, the Trustees in their sole
discretion may (but shall not be obligated to) pay out of the Elva Mae Parks Terminating Trust
any and all of ELVA MAE PARKS’ enforceable debts that are due and payable.
Article VII. Additional Dispositive Provisions.
A. ‘Family Disaster. If the residuary estate or the principal of any trust
established under this Agreement is not effectively disposed of by the foregoing provisions of
this Agreement, such property shall be distributed in equal shares to KENDRICK WELLMAN
PARKS’ and ELVA MAE PARKS’ great-grandson, JONAH MICHEL PARKS, if the is then
living and any then living great-grandchildren of KENDRICK WELLMAN PARKS’ and
ELVA MAE PARKS’.B. Generation-Skipping Transfer Tax Provisions. Notwithstanding any
other provision of this Agreement:
1. We authorize our fiduciaries to allocate any portion of our
respective federal generation-skipping transfer tax exemption to any property as to which we
are the respective transferors, including any property transferred by either of us during our
lifetime.
2. We authorize the Trustees (other than any descendant of
KENDRICK WELLMAN PARKS or ELVA MAE PARKS) to divide any trust into two
separate trusts based on the fair market value of the trust assets at the time of the division, so
that the federal generation-skipping transfer tax inclusion ratio for each such trust shall be
either zero or one and to allocate additions to any trust so that all trusts or property with an
inclusion ratio of zero shall be allocated to a trust with an inclusion ratio of zero and all trusts
or property with an inclusion ratio of one shall be allocated to a trust with an inclusion ratio of
one.
C. Children and Descendants. The terms "child," "children," "descendant"
and "descendants" as used in this Agreement with regard to any person shall include (i) such
person's present natural and adopted children and their present natural and adopted descendants
and (ii) any children or other descendants of such person born after the date of this Agreement
or legally adopted prior to attaining age eighteen (18) after the date of this Agreement.
KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’ present children are RUSSELL
D. PARKS and JEFFREY G. PARKS,
D. Per Stirpes. Whenever our fiduciaries are directed to distribute property
to an individual's descendants "per stirpes," the property shall be divided into shares beginning
with the first generation below such individual, whether or not there are members of such
generation living at the time of distribution. Subdivision of shares for successive generations
shall be made in the same manner. The meaning of the term "per stirpes" set forth in this
section shall override the provisions of any state's law to the contrary.
14E. _ Definition of Incapacitated. An individual shall be considered to be
incapacitated if the individual is under a legal disability or by reason of illness or mental or
physical disability is unable to give prompt and intelligent consideration to financial matters.
The determination as to whether an individual is incapacitated shall be made by our Trustees
other than the individual, or, if none, by the institution or individual designated to succeed the
individual as Trustee, who may rely conclusively upon (1) the written opinion of the
individual's primary physician, (2) the written opinion of any two physicians, or (3) the written
order of a court appointing a Conservator or Guardian of the individual's person or property.
Article VIII. Appointment of Fiduciaries.
If both of us cease to act as Trustee, we appoint our son, JEFFREY G. PARKS,
as Trustee, to act together with any other then acting Trustee. If our son, JEFFREY G.
PARKS, fails or ceases to act as Trustee, we appoint our son, RUSSELL D. PARKS, as
Trustee, to act together with any other then acting Trustee.
Our Trustees may appoint one or more additional Trustees at any time.
Any individual Trustee, except for an individual Trustee who has been removed,
may at any time appoint his or her successor as Trustee, unless the foregoing provisions of this
Agreement effectively provide for his or her successor.
If a Trustee of any trust fails or ceases to act, or if an Independent Trustee is
required to be appointed and the foregoing provisions of this Agreement do not effectively
provide for a successor, then a majority of the eligible income beneficiaries of any trust, may
appoint one or more successor Trustees of such trust.
Any Trustee is authorized to resign at any time without court approval. The
resignation, appointment, revocation of appointment or removal of a Trustee may be made by
the person authorized to take such action by delivery of an acknowledged instrument to the
Trustees then acting and any Trustee to be appointed. Any appointment of a Trustee may be
conditioned to commence or cease upon a future event and may be revoked or modified at any
time before such future event has occurred. Unless otherwise expressly provided, any power to
appoint a Trustee shall permit appointment of an individual, bank or trust company as such
15fiduciary, and any power to appoint (but not to remove) a Trustee shall be exercised by the
parent (or, if none, the legal representative) of any minor and the legal representative of any
incapacitated person holding such power. A determination that any individual fiduciary acting
hereunder is incapacitated shall be deemed a resignation by that individual fiduciary as of the
date of the determination.
Article IX. Administrative Provisions.
A. — Revocable Trust. During the period of time when we are both living, we
reserve and retain the right at any time, by an instrument in writing, signed, acknowledged and
delivered to the Trustees: (1) to alter, amend and modify this Agreement in any and every
respect, provided that the duties, responsibilities and obligations of the Trustees shall not be
increased without the Trustees’ consent; and (2) to revoke, cancel, and annul this Agreement
and the trust or trusts hereby created, in whole or in part. These rights are personal to us and
may not be exercised by any person having a Power of Attorney. Upon the death of the first of
us to die the surviving Grantor reserves and retains the right at any time, by an instrument in
writing, signed, acknowledged and delivered to the Trustees: (1) to alter, amend and modify
the provisions of the surviving Grantor’s separate trust established under Article III or Article
IV, as the case may be, with respect to said surviving Grantor’s separate property in any and
every respect, provided that the duties, responsibilities and obligations of the Trustees shall not
be increased without the Trustees’ consent; and (2) to revoke, cancel, and annul the provisions
of the surviving Grantor’s separate trust established under Article III or Article IV, as the case
may be, with respect to said surviving Grantor’s separate property and the trust or trusts hereby
created, in whole or in part. These rights are personal to the surviving Grantor and may not be
exercised by any person having a Power of Attorney.
B. Additions to Trust. Any person may add property to the trust estate by
lifetime gift or by transfer taking effect at death, provided such property is acceptable to the
Trustees. Each of us individually appoints the Trustees as our attorney(s)-in-fact for the
purpose of transferring any of our respective property to this trust. This Durable Limited
16Power of Attorney shall not be affected by a Grantor’s subsequent disability or said Grantor
becoming incapacitated except as provided by statute.
C. Residential Real Property Held in Trust. Our Trustees are authorized
to hold residential real property as part of any trust created under this Agreement and shall
permit the income beneficiary or eligible income beneficiaries to reside there rent-free during
the trust term. If KENDRICK WELLMAN PARKS is the income beneficiary or an eligible
income beneficiary, then KENDRICK WELLMAN PARKS may at any time direct that such
residential property shall be sold. If ELVA MAE PARKS is the income beneficiary or an
eligible income beneficiary, then ELVA MAE PARKS may at any time direct that such
residential property shall be sold. In the event of sale, all or any part of the proceeds thereof
may, in the discretion of KENDRICK WELLMAN PARKS, if KENDRICK WELLMAN
PARKS is the income beneficiary or an eligible income beneficiary, or, ELVA MAE PARKS,
if ELVA MAE PARKS is the income beneficiary or an eligible income beneficiary, be applied
to the acquisition of other real property, which, together with any such proceeds not so applied,
shall be held in such trust upon the same terms and conditions.
D. __ Discretionary Distributions Limited to Independent Trustee.
Notwithstanding any other provision of this Agreement or applicable law to the
contrary, with the exception of the trusts created under Article II, subsection A(1) of Article III
or subsection A(1) of Article IV:
1. No Trustee who is not an Independent Trustee shall participate in
any decision regarding (i) any discretionary accumulation, payment, application or allocation
of income or principal, (ii) the termination of a trust or (iii) the granting or taking away of a
general power of appointment, unless any such decision is limited by an ascertainable standard
as defined in section 2041(b) of the Code. Furthermore, a Trustee who is not an Independent
Trustee shall have no incidents of ownership in, or any power, authority or discretion of any
kind with respect to, any insurance policy on the life of such Trustee comprising a part of the
17trust. All such powers, authorities, discretions and incidents of ownership shall
Preview
11-2019-CA-004794-0001-XX Filing # 99978185 E-Filed 12/09/2019 10:17:35 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION RUSSELL D. PARKS, Plaintiff, vs. CASE NO. JEFFREY G. PARKS, Defendant. COMPLAINT COMES NOW the Plaintiff, Russell D. Parks, who by and through his undersigned attorney sues the Defendant, Jeffrey G. Parks, and alleges as follows: COUNTI 1. This is an action for damages that exceeds $15,000.00. 2. The Plaintiff, Russell D. Parks and the Defendant, Jeffrey G. Parks are the only surviving children of Elva Mae Parks, a single woman, who died on September 6, 2019 at the age of 91, as shown by-a copy of her death certificate attached hereto as Composite Exhibit “A”. 3. Prior to her death, Elva Mae Parks, along with her husband, Kendrick Wellman Parks, executed the Kendrick Wellman Parks and Elva Mae Parks Joint Revocable Trust Dated 4/11/14 (“Trust”), Composite Exhibit “B” attached. 4. On April 11, 2014, Elva Mae Parks executed her Last Will and Testament (“Will”), FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 12/09/2019 04:36:29 PMComposite Exhibit “C” attached. 5. On December 18, 2017, the Defendant, Jeffrey G. Parks, was appointed Co-Trustee of the Trust. 6. On April 5, 2018, Elva Mae Parks, and the Defendant, Jeffrey G. Parks, Co-Trustee, executed a First Amendment to the Kendrick Wellman Parks and Elva Mae Parks Joint Revocable Trust Dated 4/11/14, Composite Exhibit “D” attached. 7. Atall times material hereto the Defendant, Jeffrey G. Parks, held a Power of Attorney from Elva Mae Parks, enabling Jeffrey G. Parks to control the assets of Elva Mae Parks. A copy of the Durable Power of Attorney executed on April 11, 2014 is attached hereto as Composite Exhibit “E”. 8. As the agent of Elva Mae Parks, by virtue of the Power of Attorney he held from Elva Mae Parks, the Defendant was a fiduciary and had duties as set out in Florida Statute 709.2114 which include inter alia, the following: a. Not to act contrary to the principal’s (Elva Mae Parks’) reasonable expectations. b. To act in good faith. c. Not to act contrary to the principal’s best interest. d. To attempt to preserve the principal’s estate plan. e. To keep a record of all receipts, disbursements and transactions made on behalf of the principal. f. To act solely for the sole benefit of the principal. g To act so as to not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest.9. The Plaintiff verily believes and therefore alleges that the Defendant, Jeffrey G. Parks, violated his fiduciary duties as set forth in Florida Statute 709.2114 as follows: a By using his Power of Attorney or other artifice to retitle five bank accounts with a cumulative value of approximately $540,000.00 owned by Elva Mae Parks to designate himself as a payable on death beneficiary with the result that said monies amounting to approximately $540,000.00 did not upon the death of Elva Mae Parks pour over through Elva Mae Parks’ Will into the Trust to be divided pursuant to the estate plan of Elva Mae Parks expressed in her Trust. By failing to keep a record of all receipts, disbursements and transactions made upon behalf of the principal, Elva Mae Parks, including payments to Jeffrey G. Parks and/or his spouse for services rendered and showing the disposition of personal property including motor vehicles owned by Elva Mae Parks, together with other personal property. 10. The Plaintiff verily believes and therefore alleges that the Defendant, Jeffrey G. Parks, violated his fiduciary duty stemming from his holding of a Power of Attorney from Elva Mae Parks and in so doing damaged the Plaintiff in the following ways: a. By causing five accounts owned by Elva Mae Parks to be titled as payable on death accounts with him as beneficiary, thus preventing approximately $540,000.00 from flowing through the Will of Elva Mae Parks and pouring over to the Trust where the Plaintiff would have a right to receive one-fifth of said monies. Diminishing the Estate of Elva Mae Parks by converting, wasting or otherwise failing to maintain tangible personal property owned by Elva Mae Parks at the time of her death, half the value of which would have passed to the Plaintiff under the terms of the Will. By inducing Elva Mae Parks to amend the trust (First Amendment, Exhibit “C” attached) to provide that he alone would receive his devise (2 of 5 total shares) immediately upon death while the Plaintiff and his sons, John and Daniel, would receive their devises in annuity payments for fifteen or twenty years as originally provided in the Trust for all beneficiaries, including the Defendant. WHEREFORE, Plaintiff demands judgment for damages.COUNT I Plaintiff, Russell D. Parks, sues the Defendant, Jeffrey G. Parks, and alleges: I. This is an action for damages that exceed $15,000.00. 12. The Plaintiff realleges paragraphs | through 10. 13. Atall times material hereto, Elva Mae Parks, was of advanced age (91), suffered multiple physical ailments, was very hard of hearing, extremely forgetful, subject to delusions, on medications, confined to a wheelchair and subject to falls. 14. The Plaintiff verily believes and alleges that the titling of multiple bank accounts having a cumulative value of approximately $540,000.00 as payable on death to Jeffrey G. Parks (see Exhibit "F" attached) was the product of undue influence exercised by Jeffrey G. Parks on Elva Mae Parks because of the following: a. As shown by Exhibit "F" attached, Jeffrey G, Parks, was a payable on death beneficiary at the time of the death of Elva Mae Parks, with the result being that the estate plan set forth in the Trust, which by its terms gives Jeffrey G Parks two- fifths of the estate with one-fifth going to the Plaintiff, one-fifth to the Plaintiff's son, John K. Parks and one-fifth to the Plaintiff's son, Daniel R. Parks, was completely and materially changed, Elva Mae Parks’ mental and physical condition as alleged above made her incapable of realizing/understanding the effect on her estate plan of making Jeffrey G. Parks a payable on demand beneficiary of approximately $540,000.00 (5 accounts shown on Exhibit "F" attached). As a result of his holding a Power of Attorney from Elva Mae Parks and his relationship to her (son), Elva Mae Parks reposed confidence and trust in the Defendant, Jeffrey G. Parks, which made her vulnerable to his suggestions and imposes upon Jeffrey G. Parks a burden of explaining his role in his mother's affairs, including the titling of her bank accounts cumulatively amounting to approximately $540.00 (5 accounts see Exhibit "F" attached) as a payable on death beneficiary which benefitted only Jeffrey Parks and completely changed thepreexisting estate plan set forth in the Trust under which Jeffrey G. Parks would have received only 40% of the approximately $540,000.0 he received pursuant to the payable on death provisions of the accounts. 15. The Defendant, Jeffrey G. Parks, by inducing Elva Mae Parks to title five of her bank accounts amounting to approximately $540,000.00 cumulatively, with him as a payable on death beneficiary, damaged the Plaintiff in that those monies (approximately $540,000.00) would have flowed through the Will into the Trust which by its terms would have given the Plaintiff one-fifth of that amount (approximately $108,000.00) and would have given each of the Plaintiff's sons, John and Daniel Parks, one-fifth each with Jeffrey G. Parks receiving only two-fifths of the $540,000.00. WHEREFORE, Plaintiff demands judgment for damages. COUNT IIT Plaintiff, Russell D. Parks, sues Defendant, Jeffrey G. Parks, and alleges as follows: 16. The Plaintiff realleges paragraphs 1 through 15 above. 17. Atall times material hereto the Defendant, Jeffrey G. Parks, was Co-Trustee of the Trust beginning December 18, 2017. 18. Atall times material hereto the Plaintiff, Russell D. Parks, was and is a beneficiary of the Trust/Amended Trust (see Exhibits “A” and “B”). 19. Atall times material hereto the Defendant, Jeffrey G. Parks, had a duty pursuant to Florida Statute 736.0802 to manage the Trust solely in the interest of the beneficiaries including the Plaintiff. 20. The Defendant, Jeffrey G. Parks, violated his duty as Trustee to act solely in theinterest of the Plaintiff and other beneficiaries by either inducing Elva Mae Parks to title five of her bank accounts with a cumulative balance of approximately $540,000.00 as payable on death accounts with the Defendant as the payable on death beneficiary or retitling the five bank accounts totaling approximately $540,000.00 by use of his Power of Attorney as payable on death with the Defendant as beneficiary, and thereby reducing the amounts the Plaintiff and his sons would have received had the monies flowed through the pour over Will of Elva Mae Parks (Exhibit “C”) and into the Trust which by its terms would have given the Plaintiff one-fifth of those monies. WHEREFORE, Plaintiff demands damages and an accounting as to those monies. COUNT IV COMES NOW Russell D. Parks, by and through his undersigned attorney, and sues the Defendant, Jeffrey G. Parks, and alleges: 21. This is an action for declaratory relief. 22. The Plaintiff realleges paragraphs 1 through 20 above. 23. A controversy within the jurisdictional amount of this Court has arisen between the Plaintiff and Defendant, as a result of which the Plaintiff is in doubt as to his rights. 24, The Plaintiff and Defendant are the only surviving children of Elva Mae Parks who died on September 6, 2019. Prior to her death, Elva Mae Parks, and her now deceased husband, Kendrick Wellman Parks, who previously deceased her, executed the Trust (Exhibit “B” attached). Also, on April 11, 2014, Elva Mae Parks executed her Last Will and Testament (Exhibit “C” attached). On December 18, 2017, the Defendant, Jeffrey G. Parks, was appointed Co-Trustee of the Trust. On April 5, 2018, the Trust was amended by Elva Mae Parks and JeffreyG. Parks acting as Co-Trustee (Exhibit “D” attached). The testamentary portion of the Trust provides for disposition of Elva Mae Parks’ estate in five equal shares with Defendant, Jeffrey G. Parks receiving two shares, while the Plaintiff, Russell D. Parks and his sons, John Parks and Daniel Parks each receive one share. Each share amounts to one-fifth of $866,765.37 or $173,353.07 according to the Asset Worksheet furnished the Plaintiff (Exhibit “F” attached). By virtue of five accounts being titled as payable on death with Jeffrey G. Parks as beneficiary, Jeffrey G. Parks received an additional $540,311.23, as shown on Exhibit “F” attached together with an additional $50,000.00 bequeathed to him under the terms of the Trust. 25. The Plaintiff contends that the five accounts totaling approximately $540,000.00, as shown on Exhibit “F” attached which the Defendant received as a payable on death beneficiary should rightfully pass through the deceased, Elva Mae Parks’ Will (a pour over provision) and be distributed pursuant to the estate plan in the Trust because the Plaintiff contends that the titling of the five bank accounts (with a cumulative value of approximately $540,000.00) as payable on death with the Defendant as beneficiary was the result of undue influence, and/or violation of the Defendant’s fiduciary duty as the holder of a Power of Attorney from Elva Mae Parks, and/or a result of the Defendant’s violation of his fiduciary duty as Co-Trustee of the Trust to Plaintiff as a beneficiary of the Trust. 26. The Defendant contends that he was properly a beneficiary of the payable on death titling of the five accounts totaling approximately $540,000.00 and that those monies properly passed to him outside of probate and therefore did not pour over under the Will to the benefit of the Will of the deceased, Elva Mae Parks, into the Trust for distribution pursuant to the terms ofthe Trust. 27. Unless the Court grants relief, the Plaintiff will not know whether approximately $540,000.00 (5 accounts with payable on death designations with the Defendant as beneficiary) was lawfully received by the Defendant or whether the Defendant is obligated to handle these monies consistent with the Will of the deceased and her Trust. WHEREFORE, Plaintiff requests that the Court enter judgment declaring that the monies received by the Defendant, Jeffrey G. Parks, belong to the Estate of Elva Mae Parks and are subject to a constructive trust in favor of the estate together with damages in favor of the Plaintiff and other relief the Court deems mete or proper. Lvs feed DENNIS L. SAR ESQ., AVERY, WHIGHAM & O ESeree PA. Florida Bar No. 178618 P.O. Box 610 Fort Myers, FL 33902-0610 Telephone: (239) 334-7040 Facsimile: 239) 334-6258 Primary email: dennisavery@awwlegal.com Secondary email: awwpa3347040@yahoo.comSECURED| KENDRICK WELLMAN PARKS AND ELVA MAE PARKS JOINT REVOCABLE TRUST DATED 4/11/14 KENDRICK WELLMAN PARKS and ELVA MAE PARKS, as Grantors, KENDRICK WELLMAN PARKS, and ELVA MAE PARKS, as Trustees. 5 Weta LAW FIRM #[“ 1185 Immokalee Road, Suite 110 Naples, Florida 34110 239.449.6150 (phone) 877.646.0560 (fax) www.nicilawfirm.com COMPOSITE EXHIBIT "B"TABLE OF CONTENTS ARTICLE I. REVOCATION. ..csscsscsssssssesnssesssssncssesssssosnsossvseneceresessesea cvesesconssecensenssossceee IL ARTICLE If. JOINT TRUST... 1 ARTICLE IJ. ADMINISTRATION OF KENDRICK WELLMAN PARKS’ ARTICLE IV. ADMINISTRATION OF ELVA MAE PARKS’ PROPERTY.......... 6 ARTICLE V. KENDRICK WELLMAN PARKS’ DEBTS, DEATH TAXES AND EXPENSES. .....sessssossossscsesssossanencencsosossnsressesnsnseosscesssnssseosenesasngnecnsencersensnseece: eotcscosenceneneene 10 ARTICLE VI. ELVA MAE PARKS’ DEBTS, DEATH TAXES AND EXPENSES. eae eoesnssoesseseonecouesscescensessesoneen eassssoesceneossenscaneanssnsonsones essssasesstssoseraneesscesneerescansersesenee LZ ARTICLE VU. ADDITIONAL DISPOSITIVE PROVISIONG.........sssssssecsssssseeseeees 13 ARTICLE VII. APPOINTMENT OF FIDUCTARIES. .....ssccsssscssssssssssssonnesssnsesssnvees 15 ARTICLE IX. ADMINISTRATIVE PROVISIONS. ...cssssscsssscsssecrssecerserecssesensecesssvees 16KENDRICK WELLMAN PARKS AND ELVA MAE PARKS JOINT REVOCABLE TRUST We, KENDRICK WELLMAN PARKS and ELVA MAE PARKS, both of Estero, Florida, as the “Grantors,” enter into the following Agreement, dated April 11, 2014, with KENDRICK WELLMAN PARKS and ELVA MAE PARKS of Estero, Florida, (hereinafter collectively called “our Trustees”), We deliver and assign to the Trustees the property specified in Schedule A to this Agreement, which includes the separate property of KENDRICK WELLMAN PARKS and the separate property of ELVA MAE PARKS. Our Trustees shall continue to hold the property in trust, together with any property added to the trust estate, as follows: Article I. Revocation. While both Grantors are living, either Grantor may revoke this Joint Trust and acquire up to one-half of the total trust estate. This power may be exercised in whole or in part at any time and without the consent of the Trustees, the other Grantor, or anyone else, but the revocation must be in writing. If a Grantor revokes in part while both Grantors are living and withdraws less than one-half of the trust assets, the Trustees also shall distribute the same value to the other Grantor. In making distributions following a revocation or upon the death of a Grantor, the Trustees may allocate assets disproportionately among the portions. Article II. Joint Trust. A. Distribution of Article If Trust During Our Lives. During our lifetimes, this Revocable Trust shall be referred to as our Joint Trust. During the period of time when we are both living, the Trustees shall pay or apply to, or for our joint benefit (a) all or any part of the net income and principal of the trust estate that the Trustees consider advisable for our maintenance in health and reasonable comfort, or support in our accustomed manner of living, and (b) such amounts from the net income and principal of the trust estate as we request. Any undistributed income shall be added to principal.B. Termination of Article II Trust. Upon the death of the first of us to die, the Article If Trust shall terminate and the portion of the trust estate that KENDRICK WELLMAN PARKS could revoke shall be disposed of pursuant to Article If]. The remaining assets of the Article II Trust, that is the portion of the trust estate that ELVA MAE PARKS could revoke, shall be disposed of pursuant to Article IV. Article HI. Administration of Kendrick Wellman Parks’ Property. A. Distribution if Kendrick Wellman Parks Was Not First To Die. If KENDRICK WELLMAN PARKS was not the first of us to die, then the property to be disposed of pursuant to this Article shall be disposed of as follows: 1. Distributions During Lifetime. During KENDRICK WELLMAN PARKS? lifetime, the Trustees shall pay or apply to, or for the benefit of, KENDRICK WELLMAN PARKS (a) all or any part of the net income and principal of this separate trust that the Trustees consider advisable for KENDRICK WELLMAN PARKS? maintenance in health and reasonable comfort, or support in KENDRICK WELLMAN PARKS’ accustomed manner of living, and (b) such amounts from the net income and principal of this separate trust as KENDRICK WELLMAN PARKS requests. Any undistributed income shall be added to principal. 2. Distributions at Subsequent Death. Upon KENDRICK WELLMAN PARKS’ subsequent death, this separate trust (including any property added to this separate trust by reason of KENDRICK WELLMAN PARKS? death), which shall be referred to during the period of KENDRICK WELLMAN PARKS’ estate administration and prior to the distribution of KENDRICK WELLMAN PARKS’ residuary estate, as the "Kendrick Wellman Parks Terminating Trust,” shall be administered as follows: a) Payment of Kendrick Wellman Parks’ Debts, Death Taxes and Expenses. The Trustees shall pay KENDRICK WELLMAN PARKS?’ debts, death taxes and expenses and any preresiduary gifts under KENDRICK WELLMAN PARKS?’ Willas provided by the Article of this Agreement entitled "Kendrick Wellman Parks’ Debts, Death Taxes and Expenses." b) Balance of Kendrick Wellman Parks’ Terminating Trust. The balance of the Kendrick Wellman Parks Terminating Trust remaining after any payments or distributions permitted or required by any preceding subsection of section A of this Article, referred to in this Agreement as KENDRICK WELLMAN PARKS’ “residuary estate,” shall be distributed as provided in section C of this Article. B. Distribution if Kendrick Wellman Parks Was First To Die. If KENDRICK WELLMAN PARKS was the first of us to die, then upon KENDRICK WELLMAN PARKS’ death, KENDRICK WELLMAN PARKS? trust property (including any property added to the trust by reason of KENDRICK WELLMAN PARKS? death), which shall be referred to during the period of KENDRICK WELLMAN PARKS’ estate administration and prior to the distribution of KENDRICK WELLMAN PARKS’ residuary estate, as the "Kendrick Wellman Parks Terminating Trust," shall be administered as follows: 1. Payment of Kendrick Wellman Parks’ Debts, Death Taxes and Expenses. The Trustees shall pay KENDRICK WELLMAN PARKS’ debts, death taxes and expenses and any preresiduary gifts under KENDRICK WELLMAN PARKS’ Will as provided by the Article of this Agreement entitled "Kendrick Wellman Parks’ Debts, Death Taxes and Expenses." 2, Balance of Kendrick Wellman Parks’ Terminating Trust. The balance of the KENDRICK WELLMAN PARKS Terminating Trust remaining after any payments or distributions permitted or required by any preceding subsection of section B of this Article, referred to in this Agreement as KENDRICK WELLMAN PARKS? "residuary estate," shall be distributed as provided in section C of this Article. C. Kendrick Wellman Parks’ Residuary Estate. KENDRICK WELLMAN PARKS’ residuary estate shall be disposed of as follows:1 Distribution to Spouse. If ELVA MAE PARKS survives KENDRICK WELLMAN PARKS, KENDRICK WELLMAN PARKS’ residuary estate shall be distributed to ELVA MAE PARKS, to be added ELVA MAE PARKS? property under subsection A(1) of Article IV. 2. Balance of Kendrick Wellman Parks’ Residuary Estate. If ELVA MAE PARKS does not survive KENDRICK WELLMAN PARKS, the balance of KENDRICK WELLMAN PARKS’ residuary estate shall be disposed of as follows: a) Cash Distribution. The Trustees shall distribute Fifty Thousand Dollars ($50,000) to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’ son, JEFFREY G. PARKS, if he survives, KENDRICK WELLMAN PARKS. b) Distribution of Balance. The balance shall be divided into as many equal shares as are necessary to provide for such of the following distributions as have not lapsed, and such shares shall be disposed of as follows: (1) Two (2) such shares to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS? son, JEFFREY G. PARKS, if he survives KENDRICK WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to JEFRREY G. PARKS, but shall instead purchase a single premium immediate annuity to provide JEFFREY G. PARKS with monthly income for a period of fifteen (15) years. When obtaining the single premium immediate annuity for JEFFREY G. PARKS, the Trustees shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event JEFFREY G. PARKS does not survive the fifteen (15) year term of the single premium immediate annuity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JOHN K. PARKS and DANIEL R. PARKS, if they are living at the death of JEFFREY G. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of JEFFREY G. PARKS, and any other great-grandchildren of KENDRICK WELLMAN PARKS and ELVA MAE PARKS who are living at the death of JEFFREY G. PARKS.(2) One (1) such share to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’ son, RUSSELL D. PARKS, if he survives KENDRICK WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to RUSSELL D. PARKS but shall instead purchase a single premium immediate annuity to provide RUSSELL D. PARKS with monthly income for a period of fifteen (15) years. When obtaining the single premium immediate annuity for RUSSELL D. PARKS, the Trustees shall shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event RUSSELL D. PARKS does not survive the fifteen (15) year term of the single premium immediate annuity. The primary equal beneficiaries shall be JEFFREY G. PARKS, JOHN K. PARKS and DANIEL R. PARKS, if they are living at the death of RUSSELL D. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of RUSSELL D. PARKS, and any other great-grandchildren of KENDRICK WELLMAN PARKS and ELVA MAE PARKS, who are living at the death of RUSSELL D. PARKS. (3) One (1) such share to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS? grandson, JOHN K. PARKS, if he survives KENDRICK WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to JOHN K. PARKS, but shall instead purchase a single premium immediate annuity to provide JOHN K. PARKS with monthly income for a period of twenty (20) years. When obtaining the single premium immediate annuity for JOHN K. PARKS, the Trustees shall shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event JOHN K. PARKS does not survive the twenty (20) year term of the single premium immediate annuity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JEFFREY G. PARKS and DANIEL R. PARKS, if they are living at the death of JOHN K. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of JOHN K. PARKS, and any other great-grandchildren of KENDRICK WELLMAN PARKS and ELVA MAE PARKS, who are living at the death of JOHN K. PARKS.(4) One (1) such share to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’ grandson, DANIEL R. PARKS, if he survives KENDRICK WELLMAN PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to DANIEL R. PARKS, but shall instead purchase a single premium immediate annuity to provide DANIEL R. PARKS with monthly income for a period of twenty (20) years. When obtaining the single premium immediate annuity for DANIEL R. PARKS, the Trustees shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event DANIEL R. PARKS does not survive the twenty (20) year term of the single premium annity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JOHN K. PARKS and JEFFREY G. PARKS, if they are living at the death DANIEL R. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of DANIEL R. PARKS, and any other great-grandchildren of KENDRICK WELLMAN PARKS and ELVA MAE PARKS, who are living at the death of DANIEL R. PARKS, Article IV. Administration of Elva Mae Parks’ Property. A. Distribution if Elva Mae Parks Was Not First To Die. If ELVA MAE PARKS was not the first of us to die, then the property to be disposed of pursuant to this Article shall be disposed of as follows: 1. _ Distributions During Lifetime. During ELVA MAE PARKS? lifetime, the Trustees shall pay or apply to, or for the benefit of, ELVA MAE PARKS (a) all or any part of the net income and principal of this separate trust that the Trustees consider advisable for ELVA MAE PARKS’ maintenance in health and reasonable comfort, or support in ELVA MAE PARKS? accustomed manner of living, and (b) such amounts from the net income and principal of this separate trust as ELVA MAE PARKS requests. Any undistributed income shall be added to principal. 2. Distributions at Subsequent Death. Upon ELVA MAE PARKS?’ subsequent death, this separate trust (including any property added to this separate trust by reason of ELVA MAE PARKS? death), which shall be referred to during the period of ELVAMAE PARKS?’ estate administration and prior to the distribution of ELVA MAE PARKS’ residuary estate, as the "Elva Mae Parks Terminating Trust," shall be administered as follows: a) Payment of Elva Mae Parks’ Debts, Death Taxes and Expenses. The Trustees shall pay ELVA MAE PARKS’ debts, death taxes and expenses and any preresiduary gifts under ELVA MAE PARKS?’ Will as provided by the Article of this Agreement entitled "ELVA MAE PARKS’ Debts, Death Taxes and Expenses." b) Balance of Elva Mae Parks’ Terminating Trust. The balance of the Elva Mae Parks Terminating Trust remaining after any payments or distributions permitted or required by any preceding subsection of section A of this Article, referred to in this Agreement as ELVA MAE PARKS’ "residuary estate," shall be distributed as provided in section C of this Article. B. Distribution if Elva Mae Parks Was First To Die. If ELVA MAE PARKS was the first of us to die, then upon ELVA MAE PARKS?’ death, ELVA MAE PARKS’ trust property (including any property added to the trust by reason of ELVA MAE PARKS?’ death), which shall be referred to during the period of ELVA MAE PARKS’ estate administration and prior to the distribution of ELVA MAE PARKS? residuary estate, as the "Elva Mae Parks Terminating Trust," shall be administered as follows: 1. Payment of Elva Mae Parks’ Debts, Death Taxes and Expenses. The Trustees shall pay ELVA MAE PARKS? debts, death taxes and expenses and any preresiduary gifts under ELVA MAE PARKS’ Will as provided by the Article of this Agreement entitled “Elva Mae Parks’ Debts, Death Taxes and Expenses." 2. Balance of Elva Mae Parks’ Terminating Trust. The balance of the Elva Mae Parks Terminating Trust remaining after any payments or distributions permitted or required by any preceding subsection of section B of this Article, referred to in this Agreement as ELVA MAE PARKS? "residuary estate," shall be distributed as provided in section C of this Article.C. Elva Mae Parks’ Residuary Estate. ELVA MAE PARKS’ residuary estate shall be disposed of as follows: 1. Distribution to Spouse. If KENDRICK WELLMAN PARKS survives ELVA MAE PARKS, ELVA MAE PARKS’ residuary estate shall be distributed to KENDRICK WELLMAN PARKS, to be added to KENDRICK WELLMAN PARKS’ property under subsection A(1) of Article IIT. 2. Balance of Elva Mae Parks’ Residuary Estate. If KENDRICK WELLMAN PARKS does not survive ELVA MAE PARKS, the balance of ELVA MAE PARKS’ residuary estate shall be disposed of as follows: a) Cash Distribution. The Trustees shall distribute Fifty Thousand Dollars ($50,000) to ELVA MAE PARKS’ and KENDRICK WELLMAN PARKS’ and son, JEFFREY G. PARKS, if he survives, ELVA MAE PARKS. b) __ Distribution of Balance. The balance shall be divided into as many equal shares as are necessary to provide for such of the following distributions as have not lapsed, and such shares shall be disposed of as follows: (1) Two (2) such shares to ELVA MAE PARKS? and KENDRICK WELLMAN PARKS?’ son, JEFFREY G. PARKS, if he survives ELVA MAE PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to JEFRREY G. PARKS, but shall instead purchase a single premium immediate annuity to provide JEFFREY G. PARKS with monthly income for a period of fifteen (15) years. When obtaining the single premium immediate annuity for JEFFREY G. PARKS, the Trustees shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event JEFFREY G. PARKS does not survive the fifteen (15) year term of the single premium immediate annuity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JOHN K. PARKS and DANIEL R. PARKS, if they are living at the death of JEFFREY G. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death ofJEFFREY G. PARKS, and any other great-grandchildren of ELVA MAE PARKS and KENDRICK WELLMAN PARKS who are living at the death of JEFFREY G. PARKS. (2) One (1) such share to ELVA MAE PARKS’ and KENDRICK WELLMAN PARKS’ son, RUSSELL D. PARKS, if he survives ELVA MAE PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to RUSSELL D. PARKS but shall instead purchase a single premium immediate annuity to provide RUSSELL D. PARKS with monthly income for a period of fifteen (15) years. When obtaining the single premium immediate annuity for RUSSELL D, PARKS, the Trustees shall shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event RUSSELL D. PARKS does not survive the fifteen (15) year term of the single premium immediate annuity. The primary equal beneficiaries shall be JEFFREY G. PARKS, JOHN K. PARKS and DANIEL R. PARKS, if they are living at the death of RUSSELL D. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of RUSSELL D. PARKS, and any other great-grandchildren of ELVA MAE PARKS and KENDRICK WELLMAN PARKS, who are living at the death of RUSSELL D. PARKS. (3) One (1) such share to ELVA MAE PARKS’ and KENDRICK WELLMAN PARKS’ grandson, JOHN K. PARKS, if he survives ELVA MAE PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to JOHN K. PARKS, but shall instead purchase a single premium immediate annuity to provide JOHN K. PARKS with monthly income for a period of twenty (20) years. When obtaining the single premium immediate annuity for JOHN K. PARKS, the Trustees shall shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event JOHN K. PARKS does not survive the twenty (20) year term of the single premium immediate annuity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JEFFREY G. PARKS and DANIEL R. PARKS, if they are living at the death of JOHN K. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of JOHN K. PARKS, andany other great-grandchildren of ELVA MAE PARKS and KENDRICK WELLMAN PARKS, who are living at the death of JOHN K. PARKS. (4) | One (1) such share to ELVA MAE PARKS?’ and KENDRICK WELLMAN PARKS’ grandson, DANIEL R. PARKS, if he survives ELVA MAE PARKS. Notwithstanding the foregoing, the Trustees shall not distribute such shares outright to DANIEL R. PARKS, but shall instead purchase a single premium immediate annuity to provide DANIEL R. PARKS with monthly income for a period of twenty (20) years. When obtaining the single premium immediate annuity for DANIEL R. PARKS, the Trustees shall irrevocably designate primary beneficiaries and contingent beneficiaries in the event DANIEL R. PARKS does not survive the twenty (20) year term of the single premium annity. The primary equal beneficiaries shall be RUSSELL D. PARKS, JOHN K. PARKS and JEFFREY G. PARKS, if they are living at the death DANIEL R. PARKS. The contingent equal beneficiaries shall be JONAH M. PARKS, if he is living at the death of DANIEL R. PARKS, and any other great-grandchildren of ELVA MAE PARKS and KENDRICK WELLMAN PARKS, who are living at the death of DANIEL R. PARKS. Article V. Kendrick Wellman Parks’ Debts, Death Taxes and Expenses. Upon KENDRICK WELLMAN PARKS’ death, the Trustees shall pay to, or on behalf of, the Personal Representative of KENDRICK WELLMAN PARKS?’ estate out of the principal of the KENDRICK WELLMAN PARKS Terminating Trust, without proration or apportionment against any beneficiary under this Agreement and without any statutory rights to recover any amounts so paid, such amount or amounts as KENDRICK WELLMAN PARKS’ Personal Representative requests in writing for KENDRICK WELLMAN PARKS’ funeral expenses, the expenses of administering KENDRICK WELLMAN PARKS’ estate, any preresiduary gifts under KENDRICK WELLMAN PARKS’ Will and any estate, legacy, succession, inheritance, transfer, excise, and other similar taxes (including any generation- skipping transfer tax) imposed by reason of KENDRICK WELLMAN PARKS’ death, together with any interest and penalties thereon, referred to in this Article as "death taxes," that are required by KENDRICK WELLMAN PARKS’ Will to be paid out of KENDRICK 10WELLMAN PARKS’ general estate as an administration expense. If a Personal Representative is appointed to administer KENDRICK WELLMAN PARKS’ estate, the Trustees shall be under no duty to take part in determining any amount to be paid pursuant to this paragraph and may rely upon the written certification of KENDRICK WELLMAN PARKS’ Personal Representative as to the amount or amounts to be paid as herein authorized. If no Personal Representative is appointed to administer KENDRICK WELLMAN PARKS’ estate, the Trustees shall pay, out of the principal of the KENDRICK. WELLMAN PARKS Terminating Trust, without proration or apportionment against any beneficiary hereunder and without any statutory rights to recover any amounts so paid, KENDRICK WELLMAN PARKS’ funeral expenses, the expenses of administering KENDRICK WELLMAN PARKS’ estate, and any death taxes, other than any generation- skipping transfer tax, imposed upon or with respect to KENDRICK WELLMAN PARKS’ property which passes (i) under this Agreement, (ii) from or under any retirement plan, account or trust, owned by KENDRICK WELLMAN PARKS, whether or not qualified under sections 401, 401A, 403, 408 or 408A of the Code, which plan, account or trust, passes to, or for the benefit of, whether outright or in trust, one or more of ELVA MAE PARKS and/or the descendants of KENDRICK WELLMAN PARKS at KENDRICK WELLMAN PARKS’ death, or (iii) otherwise for which the federal estate tax marital deduction is allowed in KENDRICK WELLMAN PARKS’ estate; provided, however, no payment under this Article shall be made from or under any retirement plan, account or trust, owned by KENDRICK WELLMAN PARKS, whether or not qualified under sections 401, 401A, 403, 408 or 408A of the Code, and the Trustees are specifically authorized to borrow from any beneficiary or from any other trust established by KENDRICK WELLMAN PARKS in order to make the payments required by this Article. All other death taxes shall be prorated and apportioned in the manner provided by law. In no event shall the Trustees contribute funds to KENDRICK WELLMAN PARKS? estate or make any payment directly or indirectly if such contribution or payment would subject to death taxes property that otherwise would not be subject to such taxes. 11All property directed to be distributed under subsection A(2) or section B of Article IIJ, as the case may be, shall be distributed subject to any lien, mortgage or other debt secured by such property. Otherwise, the Trustees in their sole discretion may (but shall not be obligated to) pay out of the KENDRICK WELLMAN PARKS Terminating Trust any and all of KENDRICK WELLMAN PARKS’ enforceable debts that are due and payable. Article VI. Elva Mae Parks’ Debts, Death Taxes and Expenses. Upon ELVA MAE PARKS’ death, the Trustees shall pay to, or on behalf of, the Personal Representative of ELVA MAE PARKS: estate out of the principal of the ELVA MAE PARKS Terminating Trust, without proration or apportionment against any beneficiary under this Agreement and without any statutory rights to recover any amounts so paid, such amount or amounts as ELVA MAE PARKS’ Personal Representative requests in writing for ELVA MAE PARKS’ funeral expenses, the expenses of administering ELVA MAE PARKS’ estate, any preresiduary gifts under ELVA MAE PARKS’ Will and any estate, legacy, succession, inheritance, transfer, excise, and other similar taxes (including any generation- skipping transfer tax) imposed by reason of ELVA MAE PARKS? death, together with any interest and penalties thereon, referred to in this Article as "death taxes," that are required by ELVA MAE PARKS’ Will to be paid out of ELVA MAE PARKS’ general estate as an administration expense. If a Personal Representative is appointed to administer ELVA MAE PARKS’ estate, the Trustees shall be under no duty to take part in determining any amount to be paid pursuant to this paragraph and may rely upon the written certification of ELVA MAE PARKS’ Personal Representative as to the amount or amounts to be paid as herein authorized. If no Personal Representative is appointed to administer ELVA MAE PARKS’ estate, the Trustees shall pay, out of the principal of the Elva Mae Parks Terminating Trust, without proration or apportionment against any beneficiary hereunder and without any Statutory rights to recover any amounts so paid, ELVA MAE PARKS? funeral expenses, the expenses of administering ELVA MAE PARKS’ estate, and any death taxes, other than any generation-skipping transfer tax, imposed upon or with respect to ELVA MAE PARKS’ property which passes (i) under this Agreemeni, (ii) from or under any retirement pian, account 12or trust, owned by ELVA MAE PARKS, whether or not qualified under sections 401, 401A, 403, 408 or 408A of the Code, which plan, account or trust, passes to, or for the benefit of, whether outright or in trust, one or more of KENDRICK WELLMAN PARKS and/or the descendants of ELVA MAE PARKS at ELVA MAE PARKS? death, or (iii) otherwise for which the federal estate tax marital deduction is allowed in ELVA MAE PARKS’ estate; provided, however, no payment under this Article shall be made from or under any retirement plan, account or trust, owned by ELVA MAE PARKS, whether or not qualified under sections 401, 401A, 403, 408 or 408A of the Code, and the Trustees are specifically authorized to borrow from any beneficiary or from any other trust established by ELVA MAE PARKS in order to make the payments required by this Article. All other death taxes shall be prorated and apportioned in the manner provided by law. In no event shall the Trustees contribute funds to ELVA MAE PARKS?’ estate or make any payment directly or indirectly if such contribution or payment would subject to death taxes property that otherwise would not be subject to such taxes. All property directed to be distributed under subsection A(2) or section B of Article IV of this Agreement, as the case may be, shall be distributed subject to any lien, mortgage or other debt secured by such property. Otherwise, the Trustees in their sole discretion may (but shall not be obligated to) pay out of the Elva Mae Parks Terminating Trust any and all of ELVA MAE PARKS’ enforceable debts that are due and payable. Article VII. Additional Dispositive Provisions. A. ‘Family Disaster. If the residuary estate or the principal of any trust established under this Agreement is not effectively disposed of by the foregoing provisions of this Agreement, such property shall be distributed in equal shares to KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’ great-grandson, JONAH MICHEL PARKS, if the is then living and any then living great-grandchildren of KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’.B. Generation-Skipping Transfer Tax Provisions. Notwithstanding any other provision of this Agreement: 1. We authorize our fiduciaries to allocate any portion of our respective federal generation-skipping transfer tax exemption to any property as to which we are the respective transferors, including any property transferred by either of us during our lifetime. 2. We authorize the Trustees (other than any descendant of KENDRICK WELLMAN PARKS or ELVA MAE PARKS) to divide any trust into two separate trusts based on the fair market value of the trust assets at the time of the division, so that the federal generation-skipping transfer tax inclusion ratio for each such trust shall be either zero or one and to allocate additions to any trust so that all trusts or property with an inclusion ratio of zero shall be allocated to a trust with an inclusion ratio of zero and all trusts or property with an inclusion ratio of one shall be allocated to a trust with an inclusion ratio of one. C. Children and Descendants. The terms "child," "children," "descendant" and "descendants" as used in this Agreement with regard to any person shall include (i) such person's present natural and adopted children and their present natural and adopted descendants and (ii) any children or other descendants of such person born after the date of this Agreement or legally adopted prior to attaining age eighteen (18) after the date of this Agreement. KENDRICK WELLMAN PARKS’ and ELVA MAE PARKS’ present children are RUSSELL D. PARKS and JEFFREY G. PARKS, D. Per Stirpes. Whenever our fiduciaries are directed to distribute property to an individual's descendants "per stirpes," the property shall be divided into shares beginning with the first generation below such individual, whether or not there are members of such generation living at the time of distribution. Subdivision of shares for successive generations shall be made in the same manner. The meaning of the term "per stirpes" set forth in this section shall override the provisions of any state's law to the contrary. 14E. _ Definition of Incapacitated. An individual shall be considered to be incapacitated if the individual is under a legal disability or by reason of illness or mental or physical disability is unable to give prompt and intelligent consideration to financial matters. The determination as to whether an individual is incapacitated shall be made by our Trustees other than the individual, or, if none, by the institution or individual designated to succeed the individual as Trustee, who may rely conclusively upon (1) the written opinion of the individual's primary physician, (2) the written opinion of any two physicians, or (3) the written order of a court appointing a Conservator or Guardian of the individual's person or property. Article VIII. Appointment of Fiduciaries. If both of us cease to act as Trustee, we appoint our son, JEFFREY G. PARKS, as Trustee, to act together with any other then acting Trustee. If our son, JEFFREY G. PARKS, fails or ceases to act as Trustee, we appoint our son, RUSSELL D. PARKS, as Trustee, to act together with any other then acting Trustee. Our Trustees may appoint one or more additional Trustees at any time. Any individual Trustee, except for an individual Trustee who has been removed, may at any time appoint his or her successor as Trustee, unless the foregoing provisions of this Agreement effectively provide for his or her successor. If a Trustee of any trust fails or ceases to act, or if an Independent Trustee is required to be appointed and the foregoing provisions of this Agreement do not effectively provide for a successor, then a majority of the eligible income beneficiaries of any trust, may appoint one or more successor Trustees of such trust. Any Trustee is authorized to resign at any time without court approval. The resignation, appointment, revocation of appointment or removal of a Trustee may be made by the person authorized to take such action by delivery of an acknowledged instrument to the Trustees then acting and any Trustee to be appointed. Any appointment of a Trustee may be conditioned to commence or cease upon a future event and may be revoked or modified at any time before such future event has occurred. Unless otherwise expressly provided, any power to appoint a Trustee shall permit appointment of an individual, bank or trust company as such 15fiduciary, and any power to appoint (but not to remove) a Trustee shall be exercised by the parent (or, if none, the legal representative) of any minor and the legal representative of any incapacitated person holding such power. A determination that any individual fiduciary acting hereunder is incapacitated shall be deemed a resignation by that individual fiduciary as of the date of the determination. Article IX. Administrative Provisions. A. — Revocable Trust. During the period of time when we are both living, we reserve and retain the right at any time, by an instrument in writing, signed, acknowledged and delivered to the Trustees: (1) to alter, amend and modify this Agreement in any and every respect, provided that the duties, responsibilities and obligations of the Trustees shall not be increased without the Trustees’ consent; and (2) to revoke, cancel, and annul this Agreement and the trust or trusts hereby created, in whole or in part. These rights are personal to us and may not be exercised by any person having a Power of Attorney. Upon the death of the first of us to die the surviving Grantor reserves and retains the right at any time, by an instrument in writing, signed, acknowledged and delivered to the Trustees: (1) to alter, amend and modify the provisions of the surviving Grantor’s separate trust established under Article III or Article IV, as the case may be, with respect to said surviving Grantor’s separate property in any and every respect, provided that the duties, responsibilities and obligations of the Trustees shall not be increased without the Trustees’ consent; and (2) to revoke, cancel, and annul the provisions of the surviving Grantor’s separate trust established under Article III or Article IV, as the case may be, with respect to said surviving Grantor’s separate property and the trust or trusts hereby created, in whole or in part. These rights are personal to the surviving Grantor and may not be exercised by any person having a Power of Attorney. B. Additions to Trust. Any person may add property to the trust estate by lifetime gift or by transfer taking effect at death, provided such property is acceptable to the Trustees. Each of us individually appoints the Trustees as our attorney(s)-in-fact for the purpose of transferring any of our respective property to this trust. This Durable Limited 16Power of Attorney shall not be affected by a Grantor’s subsequent disability or said Grantor becoming incapacitated except as provided by statute. C. Residential Real Property Held in Trust. Our Trustees are authorized to hold residential real property as part of any trust created under this Agreement and shall permit the income beneficiary or eligible income beneficiaries to reside there rent-free during the trust term. If KENDRICK WELLMAN PARKS is the income beneficiary or an eligible income beneficiary, then KENDRICK WELLMAN PARKS may at any time direct that such residential property shall be sold. If ELVA MAE PARKS is the income beneficiary or an eligible income beneficiary, then ELVA MAE PARKS may at any time direct that such residential property shall be sold. In the event of sale, all or any part of the proceeds thereof may, in the discretion of KENDRICK WELLMAN PARKS, if KENDRICK WELLMAN PARKS is the income beneficiary or an eligible income beneficiary, or, ELVA MAE PARKS, if ELVA MAE PARKS is the income beneficiary or an eligible income beneficiary, be applied to the acquisition of other real property, which, together with any such proceeds not so applied, shall be held in such trust upon the same terms and conditions. D. __ Discretionary Distributions Limited to Independent Trustee. Notwithstanding any other provision of this Agreement or applicable law to the contrary, with the exception of the trusts created under Article II, subsection A(1) of Article III or subsection A(1) of Article IV: 1. No Trustee who is not an Independent Trustee shall participate in any decision regarding (i) any discretionary accumulation, payment, application or allocation of income or principal, (ii) the termination of a trust or (iii) the granting or taking away of a general power of appointment, unless any such decision is limited by an ascertainable standard as defined in section 2041(b) of the Code. Furthermore, a Trustee who is not an Independent Trustee shall have no incidents of ownership in, or any power, authority or discretion of any kind with respect to, any insurance policy on the life of such Trustee comprising a part of the 17trust. All such powers, authorities, discretions and incidents of ownership shall