Brief Fact Summary. Ernest G. Sullivan executed a will and created an intervivos trust of all of his real property. He specifically failed to make a provision to the appellant, his wife Mary Sullivan, or his grandson, Mark Sullivan in the trust or the will. The appellant sought a determination that the trust property be included as a part of his estate.
Synopsis of Rule of Law. A trust with a remainder interest is not an invalid testamentary disposition just because the settlor during his lifetime, retained broad power to modify or revoke the trust, receive income, and invade the principal. The fact that the settlor is also the trustee does not invalidate the trust
For the future, however, as to any inter vivos trust created or amended after the date of this opinion, we announce that the estate of a decedent, for the purposes of G. L. c. 191, § 15, shall include the value of assets held in an inter vivos trust created by the deceased spouse as to which the deceased spouse alone retained the power during his or her life to direct the disposition of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust.View Full Point of Law
Issue. Whether an intervivos trust with a remainder interest is an invalid testamentary disposition if the settlor retained broad power to modify or revoke the trust, receive income and invade principal during his lifetime?
Held. An intervivos trust is not an invalid testamentary disposition because the settlor retains broad power over the trust during his lifetime. A surviving spouse has no right to an intervivos trust even if it is established to defeat the wife’s election. A husband has the right to sell any property during her life without the knowledge of his wife. A wife may have special interests that should be recognized but the issue is best determined by the Legislature.
Discussion. Intervivos trusts may be validly created to escape probate. If validly created, a spouse has no right to such an instrument.