Trust Formation and Validity

Question 1

Elements of a Trust

Answer 1

There are seven elements of a valid trust: a settlor or trustor; delivery; a trustee; intent; trust property (res); beneficiaries; a valid trust purpose. Estate planning is a valid trust purpose.

Question 2

When to Discuss Trust Validity

Answer 2

If the facts state that T executed a valid trust, do not discuss these elements—assume they exist and move on.

It is not uncommon for an essay to provide that the testator executed a valid will, which then contains a testamentary trust. If the facts do not state that the trust contained within the valid will is also valid, you must discuss the elements of a valid trust.

Question 3

Invalidating a Trust

Answer 3

The same grounds for invalidating a will due to lack of testamentary capacity—undue influence, insane delusions, fraud, and mistake—also apply to trusts.