settlor’s future financial security and the financial security of his dependents. j. Intent : courts examine intrinsic and extrinsic evidence of intent, the degree of specificity with which the testator expresses her desires; the more specific the more likely testator intended it to be mandatory k. Formalities : oral trusts of personal property may be upheld if there is clear and convincing evidence of intent; testamentary trust is validly executed if the will is validly executed i. Few state legislatures have enacted formalities statutes that mirror or approximate will formalities. i. Moss v. Axford (Trust to Best Caregiver) v. It is not necessary that a beneficiary be designated by name, or by a description which makes identification automatic. Nor that the testator have in mind the particular individual upon whom his bounty may fall. It is enough if the testator uses language which is sufficiently clear to enable to court by extrinsic evidence to identify the beneficiary . If by such evidence the court can make the identification necessary to give effect to the intention of the testator, the devise will be sustained. w. A trust is not invalidated by the fact that the trustee is vested with discretion. i. Important that the trust not perish without the designated trustee (intended to be executed by testator at all events) 35
x. Re(3d)t §46 & UTC §402(c) : trustee has the power, but not the duty , to identify the trust beneficiaries when the testator names an indefinite group of people as beneficiaries and their identity cannot be clearly proven by extrinsic evidence. ii. Trustee acts as a holder of a power of appointment , with the discretion to act. iii. Such power is valid as long as there is one person who fits testator’s beneficiary description. i. Purpose Trusts l. Re(3d)T §47 : when a transferor transfers property in trust to achieve a specific purpose, the trustee has the power, but not the duty , to distribute or apply the property for that purpose. i. Trust endures for a reasonable period of time, normally not to exceed 21 years. m. UTC §409 (Noncharitable Trust Without Ascertainable Beneficiaries) i. Directs that trusts for specific or general non-charitable purposes are enforceable . ii. Trust shall be enforced either by an individual appointed by the trust’s terms, or by a person appointed by the court. i. Trusts for Animals (Purpose Trust) y. According to long-standing doctrine, a trust for a pet would fail b/c such pet has no capacity to sue, hence the trustee would have no enforceable duties z. UPC 2-907 & UTC §408 : provision validating trusts for the benefit of pets ; settlor may designate an individual with power to enforce trust obligations and, if the settlor fails to designate such an individual, a court may appoint someone to enforce the trust’s terms ii. Brainard v. Commissioner (Stock Income to Kids) aa. An expectancy cannot be the subject matter of a trust and an attempted creation, being merely a promise to transfer property in the future, is invalid unless supported by consideration.