His Wife's Distant Relatives Claimed the Trust He Built for His Sons — Then a Judge Handed Every Share to His Own Blood Relatives

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Some family fights aren’t really about money. They’re about memory, belonging, and the quiet fear that a person’s life work will end up in the wrong hands. When a trust outlives everyone it was built to serve, the paperwork gets loud, and the people get louder.

That’s basically what happened in an Ohio trust dispute that wound up in the Fifth District Court of Appeals. The case, Smith v. Avery, centered on a trust a man named Robert H. Fox created decades ago for his two sons. After the last son died, distant relatives on his late wife’s side asked a probate court to decide who was entitled to what. The details are laid out in the source material, and they read like a cautionary tale for anybody who assumes “the family will figure it out.”

In the end, the appellate court affirmed the probate judge’s decision: the trust assets were distributed to Robert Fox’s surviving heirs—his blood relatives—not to his wife’s distant relatives. Even the trustee, a court-appointed attorney with no family connection, couldn’t persuade the courts to do it differently.

A trust built for two sons, and then no one was left

Robert H. Fox signed his will and created the Robert H. Fox Revocable Living Trust on the same day in July 1991. By then, his wife Phyllis had already died (two years earlier), and the trust named their two adult sons, Gregory and Jeffrey, as beneficiaries. Robert served as trustee while he was alive, which is a common setup for a living trust.

Robert died in February 2003, and Gregory stepped in as trustee. The problem for later generations was simple and brutal: neither son ever married, and neither had children. Jeffrey died intestate (without a will) in February 2022, and Gregory died intestate two months later, making Gregory the last surviving named beneficiary.

When the last intended recipient is gone and there’s no “next layer” of family spelled out clearly, you find out how strong—or how thin—the document really is. That’s where this trust landed.

Enter the successor trustee, and the trust gets stuck in neutral

After Gregory died, the probate court appointed Darin Avery—an attorney with no connection to the Fox family—as administrator of Gregory’s estate and later as successor trustee of the trust. As trustee, Avery was holding assets he refused to distribute without the court’s direction, and that refusal is what created the legal standoff.

In October 2023, Avery filed a “request for instructions” in probate court. In that filing, he floated a theory that he, as “final trustee,” might be the intended beneficiary of the entire trust corpus. He later withdrew that request after the family members filed a declaratory-judgment action.

It’s hard to miss the human element here. When money is sitting there and nobody is clearly in charge, people start grasping for interpretations that serve them. Sometimes it’s relatives. Sometimes it’s professionals. Either way, the document becomes the battlefield.

Phyllis’s distant relatives sued to get an answer

In 2024, three of Phyllis Fox’s distant relatives filed a lawsuit in the Richland County Probate Division asking the court to interpret the trust and determine the rightful beneficiaries. They sued various other distant relatives on both sides of the family and named Avery as a defendant, too.

Most of the family members—plaintiffs and defendants alike, except Avery—eventually agreed on an important point: none of them had personal knowledge of Robert’s intent back in 1991, and they didn’t know of any witnesses who could speak to it. That matters because courts generally don’t guess at “what he probably meant” if the document itself can be read plainly. If you want your intent to survive you, you have to write it down cleanly.

Avery took the opposite posture in court—opposing efforts to interpret and distribute the assets—and filed multiple motions to dismiss plus a motion for summary judgment. But he didn’t offer a clear alternate plan for distribution that the courts found persuasive.

The probate court didn’t just say “no”—it finished the job

One of Avery’s core arguments on appeal was procedural. He claimed that once the probate court rejected the plaintiffs’ initial theory (that the trust assets belonged to Gregory’s estate as the last-to-die beneficiary), the court should have stopped there rather than identifying who was entitled to the trust assets.

The appellate court didn’t buy that. It pointed to Ohio’s declaratory-judgment statute, R.C. 2721.05, which allows interested persons to ask the court to determine rights involving the administration of a trust and the ascertainment of heirs. The court’s reasoning was plainspoken: the trust assets had to go somewhere, and leaving them in “administrative limbo” would have been an abdication of responsibility.

That part of the decision is unglamorous, but it’s where real life sits. Courts aren’t in the business of letting property drift forever just because the family tree got complicated.

The no-contest clause didn’t block the lawsuit

Avery also argued the plaintiffs lacked standing and that the trust’s no-contest clause should knock them out. The appellate court rejected both.

On standing, the court held that R.C. 2721.05 gave these relatives the right to seek a declaration about the trust’s proper construction. They had a financial stake in the outcome, which is enough to be heard, even if they ended up losing on the merits.

On the no-contest clause, the court drew a common-sense line. The clause barred a beneficiary from trying to “void, nullify, or set aside” the trust or its provisions. But asking a court to interpret and enforce a trust is not the same as attacking its validity. No one in the case sought to invalidate the trust; they wanted it applied.

Why the judge gave everything to Robert’s heirs, not Phyllis’s relatives

The real meat was the trust language itself, especially a residuary clause in Article IV, Section F(7). That provision said that if there were “no surviving named beneficiaries, including issue,” the trust would terminate and the proceeds would be distributed to the “then surviving Trustor, as determined by the laws of intestate succession then existing in the State of Ohio.”

At first glance, “then surviving Trustor” sounds odd because the trustor—Robert—was already dead. But the appellate court read the clause in context and treated the reference to intestate succession as the key. Intestate succession is the legal system that determines who inherits from a person who dies without a valid will. The court reasoned that the clause makes sense only if it points to the people who would take from the trustor by intestate succession—Robert’s heirs.

The court also pointed to other trust provisions that reinforced this “back through Robert’s line” setup, including a simultaneous-death clause and language indicating unpaid accumulated income at a beneficiary’s death should go to that beneficiary’s “successors or successor in interest in the trust,” not to the beneficiary’s estate. The court’s reading also tracked Ohio law (R.C. 5804.09(C)), which generally directs leftover noncharitable trust property back to the settlor if living or to the settlor’s successors in interest if not.

Avery’s competing idea—that “Trustor” was a scrivener’s error and should be read as “Trustee,” which would have benefited him—went nowhere. The court noted that nothing in the trust contemplated a trustee receiving distributions simply for being the trustee, and intestate succession doesn’t direct assets to trustees.

The practical lesson nobody wants to learn the hard way

There’s a quiet sadness in a case like this. Robert set up a trust for his sons, and it worked for that purpose while they were alive. But he also set up a plan that depended on a next generation that never arrived, and he left behind language just ambiguous enough to invite a fight once everybody closest to him was gone.

If you’re building anything meant to outlive you—money, property, a business interest—don’t assume family goodwill will substitute for clarity. A man can do everything “right” in the big picture and still leave a mess because he didn’t think through the final mile. Stewardship isn’t only about earning and saving; it’s also about finishing clean, so your family isn’t stuck paying lawyers to interpret what you meant.

The Ohio court did what courts are supposed to do: read the document, apply the law, and send the assets where the trust pointed. But it’s hard not to think about how much grief could’ve been avoided if the endgame had been written with fewer loose ends and fewer “we’ll see what happens” assumptions.