DOCSLIB.ORG

Nature and Creation of Express Trusts

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Nature and Creation of Express Trusts Nature and Creation of Express Trusts Trust – is an arrangement involving property whereby one person, the trustee, has an obligation to hold the property for the benefit and on behalf of another, the beneficiary. - The most common type of trust arises when the trustee is the legal owner of the property and the beneficiary has a equitable beneficial interest. - The trustee will always have a fiduciary obligation to hold the property for the beneficiary. - The beneficiary will always have an equitable interest, which is enforceable in equity. The nature of the trustee-beneficiary relationship 11.2 - Fiduciary - Relationship of utmost trust and confidence - Enforceable only in the courts of equity Indicia of a trust The three indicia of a trust are: trustee, property and beneficiary. Characteristics and elements which both indicate the existence or and are essential for a trust: Trustee: The legal or equitable interest in the property is held by one or more persons and/or corporation. The holder of the interest must have an obligation to deal with and/or administer the property on behalf of and/or for the benefit of another person or persons - This is a trustee. Property: There must be some form of property that is capable of being held on trust. Must be clearly indentified and identifiable. If there is uncertainty as to the indentity of the property, there can be no trust. The property which forms the substance of the trust is called ‘the subject.’ Beneficiary: There must be one or more persons for whose benefit the trustee is obliged to hold the property. These are ‘beneficiaries’ or ‘objects’ of the trust. A trustee may be the beneficiary of a trust if there is one of more other beneficiaries but cannot be the sole beneficiary. If this occurs, the title to the property and the beneficial interest in the property will merge and the trust will no longer exist: Re Cook [1948] Obligations/Duty: Finally, the trustee must be under an obligation to hold and administer the subject matter of the trust for the benefit of the beneficiary. This obligation creates corresponding rights in the beneficiaries. If the person who is holding the property is not holding it for the benefit of another person, there is no beneficial interest and therefore, no trust. Categories of trusts Express Trust Express trusts are trusts created with the intention that the trustee holds the property for the benefit of the beneficiaries. Terminology: The settler – The person who creates the trust and who transfers the property to the trustee. A person may declare that they are holding property for the benefit of another and thereby become both the settler and the trustee. The trust instrument – Express trusts are usually created by the execution (or signing) of a trust deed, this is sometimes called a trust instrument. The deed sets out the name of the trustee, the exact identification of the property and the names of the beneficiaries. Under some circumstances a trust may be created by oral declarations. Public trusts – Are created for the charitable purpose which benefit the public generally. Private trusts – are formed for the benefit of specific beneficiaries or classes of beneficiaries. Testamentary trusts – These are trusts created pursuant to the terms of a will. Bare trusts A bare trust is the most straightforward form of express trust. The trustee’s obligation – • Hold property until the beneficiaries require title to be transferred to their name; Wade v Wade [2009] • Generally agreed that the trustee’s primary obligation is to preserve trust property. • The trustee’s duties depend upon the circumstances in which the trust is created; Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998). Fixed express trust Trustee’s powers and duties - • Set out in trust deed. Generally have little discretionary power. • If trustee does not carry out duties there will be a breach of trust. Beneficiary’s rights – have equitable proprietary interest in the trust property Discretionary Trust (opposite to fixed trust) Two Types: • Exhaustive discretionary trust – where the trustee is obliged to make distribution from the trust property to the beneficiaries; Sir Moses Montefiore Jewish Home v Howell & Co • Non-exhaustive discretionary trust – Trustee not require to make contributions and in which the income may be accumulated. Trustee powers and duties - • Trustee is given discretion as to certain aspects of dealing with the trust property and the entitlements of beneficiaries. • Although they are given certain powers in the trust deed – still subject to any obligations set out in the instrument • Still subject to obligation from equity and statue. Beneficiary’s rights: • Beneficiaries do not have any equitable proprietary interest in the trust property • Beneficiaries merely have the right to compel the proper administration of the trust and/or require the trustee to consider making distributions from the trust assess; Kennon v Spry Charitable Trust (discussed later) A fixed, express public trust created for a charitable purpose – for public benefit. Four types 1. The relief of poverty 2. The advancement of religion 3. The advancement of education 4. Other purposes beneficial to the community Trading Trusts Type of express trust which is generally for a corporation conducting a business for the beneficiaries Superannuation Trusts • Hold property for the purpose of providing retirement benefits to beneficiaries. • Regulated pursuant to the Superannuation Industry Supervision Act 1993 (Cth) Unit Trusts • Unit trusts are trusts purchased by the beneficiaries or unit holders who thereby acquire a share in the corpus of the trust and become entitled to a proportion of the trust income. Beneficiary/unit holders rights: • An equitable interest in trust • They are more similar to shareholders in a corporation then beneficiaries of an express trust. Trust imposed over property by the court Sometimes a beneficial interest in an express trust may fail, in which case the court will declare that the beneficial interest reverts to the settler. Alternatively they may order a ‘court-created trust:’ Resulting trusts (discussed later) - Created or imposed by the court when there has been a failure of beneficial interest in the trust. ‘Automatic’ resulting trust - Beneficial interest which is not disposed under the trust deed will be vested by the court ‘automatically’ in the settler. ‘Presumed’ resulting trust - This is when the settler or purchaser’s intention to created a trust in imposed by the court. Constructive trust (discussed later) - Imposed if it would be unconscionable for one party to hold property free of the beneficial interest of another. Quistclose Trusts A Quistclose trust is a particular type of trust which arises when A provides or lends money to B and the parties intend that: - The funds are to be held by B for a specific purpose, but - If that purpose cannot be achieved, or can be only partly achieved, then - B will hold the money on trust for A until it has been repaid to A. Developed from the below case: Barclays Bank Ltd v Quistclose Investments Ltd Facts – In this case “Rolls” was in severe financial difficulty. It had to borrow money from Quistclose Investements so that he could pay dividend to shareholders. The declaration to the dividend created a debt owed by the company to the shareholders. It was agreed between Rolls and Quistclose that the funds should not form part of the assets of Rolls, but would be used solely for the payment of the dividend. The funds provided by Quistclose were accordingly paid into a special account held with Barclays Bank and Barclays were informed by Rolls of the purpose of the special account. Before the dividends could be paid, however, the directors of Rolls placed the company in voluntary liquidation. Barclays attempted to use the funds in the special account to pay off Rolls indebtedness to the Bank. Issue: - Whether, because of the arrangement between Rolls and Quistclose, Rolls held the fund son trust for Quistclose - Whether the funds became part of the assets of Rolls as a result of the non- payment of the dividend - If Rolls were a trustee of the funds, whether Barclays has been given notice of the fact. Outcome – it was held that the agreement between Rolls and Quistclose in regard to the purpose of the funds and their disposition in a special account gave rise to a ‘primary’ trust in favour of the shareholders. It was the intention of Rolls and Quistclose that if the money was not paid out as a dividend, the fund was to be held on a ‘secondary’ trust in favour of Quisclose. Quistclose had the right to be repaid and also the beneficial interest in the funds; ‘the secondary trust.’ Distinction between trusts and other forms of property relationships Trust – fiduciary obligation A fiduciary has a fundamental obligation to act in the best interests of his principal and not to put himself in a position in which his duty conflicts or may possibly conflict with his interest, unless his principal gives his informed consent after full disclosure Whilst all trustees are fiduciaries, not all fiduciaries are trustees. For example, company directors are not trustees: Re International Vending Machines Pty Ltd [1962] NSWR 1408 per Jacobs J, comparing the company director with the Trustee A trustee always holds property for the beneficiary. ii) Trustee – executor An executor is like trustee in that he owes fiduciary duty to the legatees of a will. However, although after probate the executor holds legal title to the deceased’s estate, he does not become a trustee. An executor will only become a trustee if, for some reason there has been a delay in the distribution of the assets (“the executor’s year”) AND the court thinks it appropriate.
Load more

Recommended publications
  • Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
    Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue
    [Show full text]
  • Confidential Relations and Unenforcible Express Trusts
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1928 Confidential Relations and Unenforcible Express Trusts George Gleason Bogert Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation George Gleason Bogert, "Confidential Relations and Unenforcible Express Trusts," 13 Cornell Law Quarterly 237 (1928). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CONFIDENTIAL RELATIONS AND UNEN- FORCIBLE EXPRESS TRUSTS GEORGE GLEASON BOGERT* It is a commonplace that courts of equity frequently base relief solely on the violation of a confidential relation. One of numerous examples of this action is to be found in the constructive trusts which are often created where a grantee has broken an oral, unenforcible promise to hold in trust for the grantor, and the grantee stood in a confidential relation to the grantor at the time of the making of the promise. The following is a typical case: A has conveyed land to B on B's oral agreement to hold it in trust for A and reconvey at A's command. A and B were in confidential relations before the deed was made. The Statute of Frauds prevents the enforcement of B's express promises. The retention of the land after setting up the Statute is not generally regarded as such inequitable conduct as to justify a decree that the holder is a constructive trustee.
    [Show full text]
  • Ashley Hector, Et Al. V. Bank of New York Mellon, No
    Ashley Hector, et al. v. Bank of New York Mellon, No. 10, September Term, 2020. Opinion by Biran, J. ESTATES AND TRUSTS – TRUSTEES – INDIVIDUAL TRUSTEE LIABLITY – The Court of Appeals held that a tort plaintiff may sue a trustee in its individual capacity for acts or omissions undertaken in the course of trust administration. Although it is well settled that an entity acting in its individual capacity, and the same entity acting as a trustee, are, in law, two distinct persons, a plaintiff may name the entity as a defendant in both capacities in a complaint. As the Restatement (Third) of Trusts § 105 (Am. Law Inst. 2012) explains, although the modern approach concerning trustee liability to third parties allows a plaintiff to assert a claim against a trustee in its representative capacity, a trustee is not insulated from also being sued in an individual capacity. ESTATES AND TRUSTS – TRUSTEES – INDIVIDUAL TRUSTEE LIABLITY – PERSONAL FAULT – The Court of Appeals held that, as a matter of Maryland common law, in order to obtain a judgment against a trustee in its individual capacity for a tort committed in the course of trust administration, a plaintiff must prove that the trustee is personally at fault. The Court determined that the General Assembly did not intentionally omit this standard when it passed the Maryland Trust Act. Principles of equity, as well as the applicable provisions of the Restatement (Third) of Trusts, support the adoption of this standard for individual trustee liability. ESTATES AND TRUSTS – TRUSTEES – INDIVIDUAL TRUSTEE LIABILITY – PERSONAL FAULT – “STATUTE OR ORDINANCE RULE” – The Court of Appeals held that a trustee may be personally at fault if it fails to comply with a duty imposed on it by statute or ordinance.
    [Show full text]
  • Testamentary Trusts
    TESTAMENTARY TRUSTS Trusts that are created pursuant to the terms of a probated Last Will and Testament are commonly referred to as “testamentary trusts.” 1. Applicable Law. The applicable law for these Trusts is the Kansas Probate Code (not the Kansas Trust Code). The authority of the probate court as to testamentary trusts is set forth at K.S.A. 59-103(7), as follows: to supervise the administration of trusts and powers created by wills admitted to probate, and trusts and powers created by written instruments other than by wills in favor of persons subject to conservatorship; to appoint and remove trustees for such trusts, to make all necessary orders relating to such trust estates, to direct and control the official acts of such trustees, and to settle their accounts. K.S.A. 59-103(a) Docket Fee for Trusteeship $69.50 [Rev. Ch. 80, Sec. 17, 2017 Sess. Laws] 2. Obtaining Appointment of Testamentary Trustee. Based upon the statutory grant of Court authority under K.S.A. 59-103(7), it appears necessary for a nominated testamentary trustee to be formally appointed by the Court. As a practical matter, the judicial grant of Letters of Trusteeship may be necessary to obtain delivery of the trust’s share of probate assets, to deal with banks and financial institutions (such as to open accounts), or to later sell assets. It is also appropriate to establish the formal commencement of the new fiduciary relationship and the Trustee’s formal acceptance of the obligation as fiduciary for the newly established testamentary trust.
    [Show full text]
  • A Simple, Effective Will
    Pace Law School Continuing Legal Education Bridge the Gap: December 6-7, 2014 A SIMPLE, EFFECTIVE WILL Daniel Timins. Esq. [email protected] 450 7th Avenue, Suite 1500 New York, New York 10123 (212) 683-3560 Telephone Number www.timinslaw.com Daniel A. Timins, Esq. Law Offices of Daniel Timins FOREWORD It is sometimes mind-numbing to see the absurd depth that attorneys will sink to when drafting legal documents: Details, definition sections, contingency upon contingency upon contingency. Yet, in the end, the artful litigator will still find a sufficient number of loopholes and arguments in any document, no matter how solid the drafter intended it to be. The statement “simple is better” when it comes to legal documents may be true, and perhaps equally so when it comes to the central estate planning document: A Last Will and Testament. There are many two page “Sweetheart Wills” drafted by laymen which are admitted to Probate with little problem. On the reverse side, there are a near-unlimited number of Court proceedings based on multiple page Wills drafted by the most skilled attorneys that languish in the Surrogate’s Court for years. And, of course, the inverse is equally true for both parties. The “Plain English” trend in legal writing should be observed with modern Wills even more so than other legal documents: The Will should be drafted in a way that allows the client to understand what legal concepts are being conveyed. To do otherwise may have the negative effects of not fulfilling the Testator’s desires, and may open the Will up to the protracted legal intervention that the drafter was hoping so hard to avoid.
    [Show full text]
  • Ademption by Extinction: Smiting Lord Thurlow's Ghost
    ADEMPTION BY EXTINCTION: SMITING LORD THURLOW'S GHOST John C. Paulus* INTRODUCTION Testator (T)properly executes a will giving his farm, Blackacre, to his daughter (D), and the rest of his property to his son (S). T lives with D on Blackacre. Three years later T sells Blackacre and buys Whiteacre. T and D live together on Whiteacre until T's death four years later. From numerous utterances and acts it is very evident that T wants D to have Whiteacre for her own after his death. Will Whiteacre go to D or S? In most (maybe all) of the states, the answer would be, "S." The identity rule enunciated by Lord Thurlow in 1786 is followed.' As indicated by its application to T, D, and S, the dominating philosophy can bring forth some unsatisfactory results. Lord Thurlow's opinion calls for the application of a simple test in determining whether or not a specific devise adeems: If the asset identified as the exclusive subject of the devise is not held by the testator at his death, the devise fails.' Ademption by extinction, as this problem area is uniformly called, is reduced to a matter of identifying, if possible, the devised item in the estate.' The most often quoted statement by Lord Thurlow is: "And I do * Professor of Law, Willamette University. Visiting Professor of Law, Texas Tech University 1970-71. 1. Ashburner v. Macguire, 29 Eng. Rep. 62 (Ch. 1786). This hypothetical is similar to the facts in Ashburner in that the testator sells the devised asset (Blackacre). Three years later in Stanley v.
    [Show full text]
  • Trustee Liability Issues –Offshore
    TRUSTEE LIABILITY ISSUES –OFFSHORE 11th Annual International Estate Planning Institute March 13th – 4pm, Crowne Plaza, Times Square, New York Vanessa Schrum, Appleby (Bermuda) Limited 1. INTRODUCTION A trustee can be faced with many forms of liability including liabilities to third parties, contractual liabilities, liabilities in tort and liabilities as a titleholder (eg shareholder or owner or land). But perhaps one of the biggest concerns to trustees is potential liability to beneficiaries for breaches of trust. In order to fully appreciate the extent to which trustees may face liability for breaches of trust it is important to understand the duties of trustees. 2. TRUSTEE DUTIES Trustee duties are obligations contained in the trust instrument or imposed by common law or statute, which must be carried out by the trustees. In the Channel Islands (unlike other offshore jurisdictions) generally trustee duties are imposed by statute. Duties and powers prescribed by general law may be modified by the trust instrument, but there are minimum core obligations placed on trustees that cannot be avoided. At their basic a duty to act honestly and in good faith1 and an overriding obligation to preserve and safeguard the trust property. Importantly there is a “duty of care” on the trustees which is a standard that they must meet in every aspect of the performance of the role as trustees. The standard applied to the duty of care differs for lay and professional trustees. Licensed trustees in offshore jurisdictions will also be subject to the Regulations and Codes of Practice issued by the relevant governing authority in that jurisdiction.
    [Show full text]
  • Getting Title out of a Trust
    GETTING TITLE OUT OF A TRUST Prepared by Ward P. Graham, Esq. Vice President, Region H Counsel Stewart Title Guaranty Company For 2002 Stewart Title Guaranty Company Agency Seminar A. INTRODUCTION For purposes of this seminar, we’re going to deal with issues involving getting title out of express trusts, i.e., those created by some form of instrument. We won’t be discussing trusts arising or imposed by operation of law, such as constructive trusts and resulting trusts. Nor will we get into the world of charitable trusts or the statutory custodial-type trusts dealt with in G.L. Chapters 201C and 203B. What we will be discussing are the two basic types of trusts that you are most likely to see in your conveyancing practice, testamentary trusts (created by the will of a decedent) and inter vivos trusts under written agreements or “declarations”. Included among the latter, for purposes of our discussion relating to taking title to real estate out of a trust, are revocable trusts, irrevocable trusts and so-called “nominee” trusts (most commonly containing the words “Realty Trust” in their name and being the most common form of trust used for real estate title holding purposes). But first, let’s start with some of the basics of trust law. B. CREATION OF TRUSTS 1. The Primary Relationship: Trustee and Beneficiary. 1 To begin with, for our purposes, “No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party creating or declaring the trust or by his attorney.” G.L.
    [Show full text]
  • ELIZABETH KERR ET AL. V. LYDIA HENDERSON ET AL
    09/28/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 23, 2020 Session ELIZABETH KERR ET AL. v. LYDIA HENDERSON ET AL. Appeal from the Chancery Court for Johnson County No. 7226 John C. Rambo, Chancellor No. E2020-00112-COA-R3-CV In this case involving the inheritance of an investment account, the three plaintiffs filed a complaint in September 2016, asserting, inter alia, that a letter executed by their father prior to his 2007 death had operated to create an express trust concerning the account, for which their stepmother had acted as trustee with the understanding that the plaintiffs were to be the beneficiaries of the account after her death. The plaintiffs alternatively sought imposition of a constructive trust. The plaintiffs’ stepmother, who is the subject decedent in this action, had died in April 2016. The plaintiffs initially named as defendants the co- executors of the decedent’s estate, as well as the financial institution holding the investment account. The trial court subsequently entered agreed orders to dismiss the financial institution as a party and to substitute as defendants the decedent’s three adult children from a previous marriage. Upon competing motions for summary judgment and following a hearing, the trial court granted summary judgment in favor of the plaintiffs, finding that an express trust had been created by the writings of the plaintiffs’ father and that, alternatively, a constructive trust should be imposed based on the combined writings and actions of the plaintiffs’ father and the decedent. The defendants filed a motion to alter or amend the judgment, which the trial court denied following a hearing upon finding in part that new evidence submitted by the defendants should not be considered.
    [Show full text]
  • 7 Are You Appointed Trustee-Nb
    ARE YOU APPOINTED TRUSTEE OVER A REVOCABLE TRUST? How to answer the question: What about the Will? You may have been named by a Settlor as a Trustee, successor to a Trustee, or as a co-Trustee of a revocable titled to the Trustee of a revocable trust is excluded from probate. As a result, if the property of the decedent is trust, but during the Settlor's lifetime, as long as the Settlor is competent to do so, the Settlor can remove or properly titled to the Trustee, the property does not pass in accordance with the decedent's Will. Instead, it replace you. During a Settlor's lifetime, if you are a Trustee you serve at the pleasure of the Settlor. After a passes without the need for court intervention in accordance with the terms of the decedent's trust. Probate Settlor dies, the Settlor's revocable trust becomes irrevocable and his beneficiaries have rights of inheritance assets also generally do not include other assets that pass by operation of law, such as life insurance proceeds, that did not exist during the Settlor's lifetime. For a Settlor who is legally and financially competent, the revocable transfer on death (TOD), pay on death (POD) and retirement accounts (unless the beneficiary designation trust serves as an alter-ego during life, and as a Will substitute upon death. Although there are three roles — requires distribution to the deceased person's "estate") as well as property passing to a survivor with rights of Settlor, Trustee and Beneficiary — the Settlor is the only party in interest.
    [Show full text]
  • Uniform Trust Code
    D R A F T FOR DISCUSSION ONLY UNIFORM TRUST CODE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS MARCH 10, 2000 INTERIM DRAFT UNIFORM TRUST CODE WITHOUT PREFATORY NOTE AND COMMENTS Copyright © 2000 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. UNIFORM TRUST CODE TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS AND DEFINITIONS SECTION 101. SHORT TITLE. ............................................................ 1 SECTION 102. SCOPE. ................................................................... 1 SECTION 103. DEFINITIONS. ............................................................. 1 SECTION 104. DEFAULT AND MANDATORY RULES. ...................................... 4 SECTION 105. QUALIFIED BENEFICIARIES. ............................................... 5 SECTION 106. NOTICE. .................................................................. 5 SECTION 107. COMMON LAW OF TRUSTS. ................................................ 6 SECTION 108. CHOICE OF LAW. .........................................................
    [Show full text]
  • The Uniform Trust Code (“UTC”), with Modifications Considered Appropriate to This State’S Institu- Tions, Traditions, and Jurisprudence
    DONALDSON MASTER 401 10/19/2005 11:53:23 AM THE VIRGINIA UNIFORM TRUST CODE John E. Donaldson * Robert T. Danforth ** I. INTRODUCTION In its 2005 Session, the Virginia General Assembly enacted Senate Bill 891,1 thus adopting the Uniform Trust Code (“UTC”), with modifications considered appropriate to this state’s institu- tions, traditions, and jurisprudence. The Virginia Uniform Trust Code (“Virginia UTC”), set forth in new Chapter 31 of Title 55 of the Virginia Code, has an effective date of July 1, 2006, but, once in effect, it will be applicable (with some exceptions) to trusts cre- ated before, on, or after that date.2 The new Virginia UTC, which encompasses the great bulk of the principles and rules that comprise the law of trusts in Vir- ginia, has great relevance and importance to lawyers who special- ize in estate planning and to lawyers who represent trustees or trust beneficiaries. It also affects lawyers whose clients, as “third * Ball Professor of Law, Emeritus, College of William and Mary, Marshall-Wythe School of Law. B.A., 1960, University of Richmond; J.D., 1963, College of William and Mary; LL.M., 1966, Georgetown University. This article is based in substantial part on materials prepared by Professor Donaldson and presented by him at the Douglas W. Con- nor 26th Annual Advanced Estate Planning and Administration Seminar in April 2005, sponsored by Virginia C.L.E.; those materials were used with the permission of Virginia C.L.E. An abbreviated version of Professor Donaldson’s materials also appeared in the Spring 2005 issue of the Virginia State Bar Trusts and Estates Section Newsletter.
    [Show full text]