dissenting.
I respectfully dissent.
The sole issue presented to the trial court was whether the decedent created an effective trust during her lifetime. Among the elements necessary to create an express trust is the settlor’s intention to create that trust. Estate of Granberry v. Claim of Baker, 30 Colo.App. 590, 498 P.2d 960 (1972); Coriell v. Hudson, 563 F.2d 978 (1977).
After the respondents placed the trust document with decedent’s signature into evidence, the petitioner was permitted, by use of parol evidence, to submit facts purporting to establish that decedent, though she had affixed her signature thereto, did not intend the document to be effectuated. Pa-rol evidence for this purpose may not vary the terms of the document nor create ambiguity therein, but rather, may show that the agreement was not effectively in existence. See Cosper v. Hancock, 163 Colo. 263, 430 P.2d 80 (1967); Witherspoon v. Pusch, 141 Colo. 525, 349 P.2d 137 (1960); Burenheide v. Wail, 131 Colo. 371, 281 P.2d 1000 (1955); McGuire v. Luckenbach, 131 Colo. 333, 281 P.2d 997 (1955).
Here, the trial court found and concluded that the requisite intent to create an operative trust was lacking. This conclusion was based upon the undisputed mistake of mixed fact and law, the leaving of the trust document with the attorney in Denver who had told her that it was of no force or effect, the placing of the will without the trust document in her safety deposit box in Durango, the generous direct inter vivos gifts to respondents after the signing of the trust document, and various statements made thereafter by the decedent. The record contains ample competent and substantial evidence on which the trial court reached its findings and conclusions. On review, I would not disturb its findings. Estate of Granberry, supra.