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B.        CREATION OF EXPRESS TRUSTS

A trust is generally created
        a) in three ways:

(i) An inter vivos trust may be created
        a) (sometimes called a "living trust")
        b) by a declaration of trust
        i) by a property owner,
        ii) stating that he holds the property as trustee in trust;

(ii) An inter vivos trust is also created
        a) by transfer of property
                i) by the settlor
                ii) during his lifetime; and

(iii) A testamentary trust is created
        a) by will.

Trusts can also be created
        a) by the exercise of a power of appointment or
        b) by a promise
                i) enforceable under contract law.

1.         Inter Vivos Trusts

a.         Present Declaration or Present Transfer of Trust Required

1)         Declaration of Trust

A person can create a trust
        a) by declaring himself
                i) trustee for another
        (e.g., A declares that
                i) he holds 100 shares of GM stock in trust for B).

Where there is a declaration of trust,

1) no delivery is required
2) because the settlor is the trustee.

When the trustee is another person,
1) the property must be delivered (i.e., transferred)
        a) to the trustee
        b) in order to transfer it in trust.

2)         Transfer (delivery) of Property

A trust can be created
        a) by the transfer of property
                i) to another
                        (a) as trustee.

The trustee takes legal title
        a) upon delivery of
                i) a deed or
                ii) other document of title, or
        b) upon actual delivery of
                i) manually transferable property.

3)         Delivery Required

Delivery means an act
        a) that places the trust property
                i) out of the settlor's control
        b) (unless the settlor is to serve as trustee).

A settlor may also deliver
        a) to a third person
                i) with instructions to that person
                        (a) to deliver to the trustee.

As indicated previously,

        a) failure
                i) to name a trustee or
        b) a promise to name one
                i) in the future

1) may indicate a lack of present intention and
2) may prevent a delivery of the trust res.



4)         Must Manifest Intent When Trust Res Exists

If
        a) a trust is not established
                i) because there is no trust res, and
        b) the subject matter of the trust
                i) later
                ii) comes into the settlor's hands,

1) a trust arises
        a) at the subsequent time
2) if, and only if, the settlor manifests an intention
        a) then, anew
        b) to create a trust.

Example:   A tells B that she is leaving him $10,000 by will. Before A dies, B declares a trust of this legacy.

        The trust is invalid because there is no res.

         However, if after A dies, B in some way manifests an intention to hold the $10,000 in trust,

        the trust arises at that time.



b.         Formal Requirements- Statute of Frauds

1)         Writing Required for Trusts of Land

Most states do not require a writing
        a) for a trust of personal property.

If, however, the subject matter of an inter vivos trust is land,

1) a written instrument is commonly required
        a) under the Statute of Frauds
        b) to make the trust effective.

The writing must be signed
        a) by the person
                i) entitled to impress the trust upon the property. (i.e., to be charged to set up trust)

Note that :,

in certain circumstances,

an otherwise invalid oral trust
        a) of land

1) may be enforced
        a) by way of a constructive trust (an equitable remedy). (See VIII.C.5., infra.)


2)         Parol Evidence Rule

In most jurisdictions,

evidence
        a) outside the written agreement

1) is permitted
        a) for the purpose of showing
                i) the true intent of the parties

2) only where the writing is ambiguous on its face.

A few states, however, will allow the parol evidence
1) even if the writing is unambiguous,
2) holding that the necessary ambiguity may be created
        a) by the extrinsic evidence itself.

2.         Testamentary Trusts

a.         Formalities

To create a trust
        a) by will,


        a) the intention to create a trust and
        b) the other essentials of the trust (i.e.,
                i) identification of the beneficiaries,
                ii) the trust property, and
                iii) the trust purposes)

1) must be ascertainable
        a) in one of the ways
                i) permissible
                        (a) under the applicable Statute of Wills.



This means that
        a) the trust intent and
        b) the essential terms of the trust

         must be ascertained
                i) from one of the following:


1) The terms of the will itself. (i.e., integrated)

2) An existing writing
        (a) properly incorporated by reference
                  (i) into the will
                        (where incorporation by reference is recognized).

Example:   In a will executed on July 31, T bequeaths a sum to First National Bank in trust for the purposes set forth in a trust instrument executed by T on June 30 of that same year.

        No trust came into being on June 30 because no res was put in the trust. T then dies in Oct. 1.

        The June 30 trust instrument is incorporated by reference, and a testamentary trust by reference to that instrument is established.

        If T had amended the trust on September 14, the amendment could not have been incorporated by reference because it was not in existence when the will was executed.

        Even so, by statute in most states the amendment is given effect under the Uniform Testamentary Additions to Trusts Act or its equivalent.

3) Facts
        a) having a substantial, independent significance
                        i) apart from their effect
                                (a) on the terms of the will.


Example:   T establishes an inter vivos trust of $100,000 for the benefit of B on June 30.

        In a will executed on July 31 of that year, T bequeaths $200,000 in trust(testamentary trust) to be added to the trust(inter vivos trust) established on June 30.

        T amends the trust on October 17. T then dies.

        The trust(inter vivos trust) has independent significance (an inter vivos trust of $100,000).

        Thus, the $200,000 is added to the inter vivos trust as amended, and does not become a separate testamentary trust.

4) The exercise of
        a) a power of appointment
                        i) created by the will

Example:   T bequeaths a sum in trust for the benefit of "such persons as A shall appoint by deed or will."

        The trustee holds on a resulting trust for T's estate until A exercises his power of appointment, and then he holds in trust for the beneficiaries appointed by A.




b.         "Secret"and "Semi-Secret" Trusts

1)         Absolute Gift But Trust Intended ("Secret Trust") -Constructive Trust May Be Imposed

In the case of a secret trust,

1) the will makes a gift,
        a) absolute on its face,
        b) to a named beneficiary.

However, in reality,

the gift was made
        a) in reliance upon the beneficiary's promise
                i) to hold the gift property
                        (a) in trust for another.

To prevent the unjust enrichment
        a) of the named beneficiary (secret trustee),

1) courts will allow the intended trust beneficiary
        a) to present extrinsic evidence
                i) of the agreement.

If the agreement can be proved
        a) by clear and convincing evidence,

1) a constructive trust will be imposed
        a) on the named beneficiary.

The Statute of Frauds is not a bar
1) because the suit is not
        a) to compel enforcement of the trust, but rather
        b) to impose a constructive trust
                i) to prevent unjust enrichment.

The Statute of Wills is not a bar
1) because
        a) the constructive trust does not operate
                i) on the will itself, but rather
                ii) on the property,
        b) once it comes into the hands
                i) of the named beneficiary.


Example:   T left 14 colleges $1.6 million. Concerned about a statutory restriction on gifts to charities, T executed a codicil giving the residue of his estate to R.

        The will gave no indication of a trust, or that R was not to have beneficial ownership.

        On T's death, the gift to the colleges failed and passed to R through the residuary clause.

        Evidence was offered that R had promised to hold the residuary in trust for the colleges.

        Held: To prevent unjust enrichment, a constructive trust was imposed upon clear and convincing evidence that R agreed to hold the gift in trust. [Trustees of Amherst College v. Ritch, 45 N.E. 876 (N.Y. 1897)]

a)         Promise Enforceable Whether Made Before or After Will's Execution

1) Unlike the rule applicable to lifetime conveyances (see infra),

2) in the case of wills,
        a) relief is given
        b) whether the agreement to hold in trust is made
                i) before or
                ii) after
                        (a) the will is executed.

In either situation,

there is induced reliance ;
        a) if the promise is made
                i) after the will's execution,

           the testator is induced
                i) not to change her will.

Also, it does not matter
        a) whether the person(the named beneficiary) intended
                i) to perform the agreement
                        (a) at the time he made his promise.

All that matters is that
        a) the testator executed her will
                i) in reliance on the promise.

b)         Compare -Attempted Modification of Gift Outside Will

If a testator
        a) executes a will
                i) making an absolute devise, (without any words at that time)
        b) then writes a note
                i) (opened after the testator's death)
                ii) telling the legatee that
                        (a) she wants the legatee
                                (i) to hold the property in trust
                                        (A) for certain enumerated purposes,

1) the Statute of Wills prevents enforcement of the trust.

No constructive trust is raised
1) because there is
        a) no induced reliance and
        b) no unconscionable conduct
                i) on the part of the legatee.

He cannot be compelled
        a) to execute the trust
1) because no trust was created
        a) by the will.

2)         Gift "In Trust" Without Beneficiary ("Semi-Secret Trust") -Resulting Trust Implied

In the case of a semi-secret trust,

1) the will
        a) makes a gift
                i) to a person
                        (a) in trust,
        b) but does not name the beneficiary.

The testator may have communicated the terms
        a) to the "trustee."

The majority of courts have taken the position that
        a) the trust is unenforceable
                i) because of the Statute of Wills.

The will does not identify the intended beneficiary, and
2) it would violate the policy of the wills statute
        a) to permit identification
                i) by parol testimony.

The gift fails
        a) for want of identification of the beneficiary. (by the Statute of Wills)

The named trustee holds the property
        a) on a resulting trust
                i) for the testator's heirs.


3)         Different Result in "Secret Trust" and "Semi-Secret Trust" Cases Explained

Why is it that
        a) in the secret trust cases
                i) (whree, the will purports to make absolute disposition)
                ii) the trust can be proved,
        b) but in the semi-secret trust cases
                i) it cannot?

The answer lies in
        a) who the litigants are
                i) in the two cases.

In the secret trust case,

1) the issue is between
        a) the legatee(the named beneficiary) and
        b) the beneficiaries (the intended beneficiary)
                i) of the alleged oral promise;

2) to prohibit proof of
        a) the legatee's promise

   would lead to
        a) unjust enrichment.

But in the semi-secret situation,

the one thing
        a) that is clear

1) is that
        a) the legatee himself was not intended
                i) to take beneficial enjoyment;
        b) the disposition to him was
                i) "in trust."

Thus,

1) the dispute is between
        a) the
                i) intended
                ii) but unidentified
                        (a) beneficiaries and
        b) the heirs (intestate heirs);

2) the "induced reliance-unjust enrichment" element is not present.
III. CHARITABLE AND HONORARY TRUSTS

A.         DISTINCTIVE RULES APPLY TO CHARITABLE TRUSTS


← End



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