Most people assume a will is a private document — yours to change as long as you are alive and of sound mind. For generations of Idaho families, that was simply true. Then, in 2020, the Idaho Supreme Court decided a case called Ferguson v. Ferguson, and the ground shifted under nearly everyone with a will or trust in the state.
In Ferguson, the court held that a widow owed fiduciary duties — the same duties of loyalty and accounting that a trustee owes — to the son she had named to inherit, beginning the moment she signed her will. (Simply put, someone you name in your plan today could claim a right to question how you spend your own money tomorrow.)
The decision blurred the line between a person who simply signs a will and a person who manages a trust for herself or others. It treated a power of appointment — an ordinary tool for gifting assets from a trust — as being effective long before any Western law has considered such a power effective (namely, upon death).
The practical concern is straightforward: under the reasoning in Ferguson, a named beneficiary (or “appointee”) can argue they have standing to demand information, or even sue, even while you are still alive. That cuts against centuries of settled law, under which beneficiaries gain rights only after the person who made the will has died.
Our founder, Joshua McKarcher, did not represent either family in the case. But after the court’s initial ruling, we filed a proposed amicus curiae (“friend of the court”) brief urging the justices to reconsider the most sweeping parts of their opinion before it became final — and to invite briefing from objective third parties, as courts frequently do. You can read the full application here: Application for Leave to Appear as Amicus Curiae (PDF).
Josh has continued to make that case in public. His June 2026 opinion column in the Lewiston Tribune, “Gov. Little should correct Supreme Court’s bushwhacking,” lays out why he believes the ruling should be narrowed or overturned. Since his editorial, an Idaho judge has requested and shared with other judges Joshua’s materials so they can be on alert if a case like this one lands on their docket.
For now, the law stands — which is exactly why planning matters. A carefully drafted revocable living trust, with the right supporting documents, avoids Ferguson and accomplishes what families intend. But the language and structure of pre-2020 trusts require a fresh look in light of Ferguson.
Because we counsel clients on both sides of the Idaho-Washington border, we watch closely how each state’s courts treat these questions, and we build plans designed to hold up under either state’s laws as those laws stand today — not the law as it used to be.
If you have an Idaho will or trust and want to understand how Ferguson might affect your plan, we would be glad to review it with you.
Author Bio
Joshua McKarcher, Estate Planning Attorney
Joshua McKarcher is the founder of McKarcher Law PLLC in Clarkston, where he practices estate planning and administration for families in the Lewis-Clark Valley and throughout Washington and Idaho. He handles the cross-border planning that families with property or relatives in both states need.
He earned his law degree from The George Washington University Law School in Washington, D.C., graduating in the top 2% of his class, where he was elected to the Order of the Coif and served as Managing Editor of The George Washington Law Review.
He began his career at Covington & Burling LLP, handling complex corporate bankruptcy and insurance insolvency matters. He argued and won before the U.S. Court of Appeals for the Fourth Circuit, where the court ruled unanimously in his clients’ favor, and he won unanimous opinions twice before the Idaho Supreme Court, which overruled one of its precedents at his suggestion during oral argument.
That experience, spent untangling estates and businesses after something has gone wrong, is what shapes his work today: building estate plans that identify and minimize the risk of disputes, keep families out of probate, reduce estate and income taxes, and protect what people leave behind.
537 6th Street, Clarkston,
WA 99403
