Brief Fact Summary. Philomena Lux created a will in which she left the residuary of her estate to her grandchildren. Particular language in the will suggested that Lux created a testamentary trust.
Synopsis of Rule of Law. A testamentary trust does not have to be created using the words “trust” or “trustee.” A testamentary trust exists where the testator intends to create a trust based upon the language used in disposing the gift, the nature of the gift, and the characteristics of the beneficiaries.
Issue. Whether the language of a residuary clause of a will that uses phrases commonly used to describe the duty of a trustee, when viewed in its entirety, creates a trust?
Held. Yes. The testator created a trust based upon the language of the residuary clause using the phrases, “shall be maintained” and “shall not be sold” when viewed with the overall clause. Both of the phrases strongly indicate the testator’s intent that the property be retained and managed for a lengthy amount of time for the benefit of her son’s children. The nature of the gift, the remainder of the testator’s estate, was quite large. It appears that the testator wanted the property to be held and managed by another adult until the children became fully grown and able to handle the property themselves.
A testamentary gift ordinarily will be held to constitute a gift to a class where an aggregate sum is given to a group of persons who at the time of the gift are uncertain in number but who are to be ascertained at some future time when all who constitute the class will take an equal or other definite proportion, the amount of the share of each being dependent upon the number that ultimately constitutes the class.View Full Point of Law