Creation of Testamentary Trust

Question 0

Secret Trust

Answer 0

devise appears to be outright but is made subject to an oral agreement by devisee to hold the property in trust for another

if trustee refuses to perform, extrinsic evidence is allowed to prove its existence.

Constructive trust may be imposed if proven by clear and convincing evidence

Question 1

Testamentary trust

Answer 1

Essential terms of trust set out in a will

must comply with due execution requirements of a will

Question 2

Semi-Secret Trust

Answer 2

T indicates property is being devised to a trustee “in trust”
fails to identify beneficiaries

void in NY and extrinsic evidence is NOT allowed to prove existence

instead trustee holds property in resulting trust for settlor’s estate

Question 3

pour over provisions

Answer 3

direct transfer of decedents property into an inter vivos trust established by testator or someone else.

Question 4

Rule that causes problems for pour over provisions

Answer 4

words outside of a will cannot be given testamentary affect

Question 5

Uniform Testamentary Additions to Trusts Act

Answer 5

makes pour over provisions valid in most circumstances

Question 6

Requirements for Pour Over provisions to be valid in NY

Answer 6

1. trust must be executed by T prior to or contemporaneously with the will containing provision
2. Trust identified in the will
3. Trust can be amendable or revocable and assets will be subject to the trust as it exists as of T’s death
4. trust need not be funded at time of execution
5. pour over provision fails if trust is revoked prior to testators death