Revocable trusts became a popular form of a will substitute in the 1960s and remain so to this day. If the trust is funded, the settlor typically retains the right to receive income from the trust, the right to invade the trust principal, and the right to modify the terms of the trust. In addition, the settlor may serve as trustee or may appoint a third-party trustee. At the settlor's death, the trust assets, which may also include property transferred to the trust from the settlor's probate estate by means of a pour-over provision in the will, will be distributed to the trust's remainder beneficiaries' in accordance with the terms of the trust.
Because the settlor usually retains an absolute right to revoke or modify the terms of a revocable trust at any time, courts generally refuse to afford remainder beneficiaries any rights in the trust while the settlor is alive. Instead, courts have ruled that remainder beneficiaries have no standing to seek information about the trust or challenge the trustee's actions, regardless of whether the trustee is the settlor or a third-party. However, the situation becomes somewhat murky once the settlor dies and the interests of remainder beneficiaries are no longer "mere expectancies."
Part II briefly examines the nature and origin of the revocable trust. Part III considers how courts treat objections by remainder beneficiaries to actions taken by the settlor while serving as trustee. Part IV surveys attempts by remainder beneficiaries to question whether the settlor lacks sufficient mental capacity to revoke or modify the trust or whether such actions are the product of undue influence. Part V concerns the ability of remainder beneficiaries to contest the actions of a third-party trustee while the settlor is alive.
Part VI deals with the problem of whether remainder beneficiaries should have the power after the settlor's death to challenge actions taken by the settlor while alive on the theory that the settlor was mentally incompetent or was subject to undue influence. Part VII looks at requests for information or an accounting from a third-party trustee made after the settlor's death. Part VIII focuses on the controversial and perplexing issue of whether a remainder beneficiary should be allowed to sue the third-party trustee of a revocable trust after the settlor's death for wrongdoing allegedly committed during the settlor's lifetime. Part IX evaluates both doctrinal and normative perspectives on the question of remainder beneficiary rights after the death of the testator. Finally, Part X offers a solution to the conflict of authority on this issue.
|The Quinnipiac Probate Law Journal
|Published - Jan 1 2019