Law School Resources

Case Briefs, Hypos, Class Notes, Outlines, & Analysis

Law School Resources

Wills, Trusts & Estates


Definition of a Trust – Property transferred to one person for another’s Benefit,

A.     Elements of a Trust – MUST ALL be Present WITH INTENT

·        INTENT by Grantor to set up Trust in order to set up an Express Trust-

·        Must be Definite and Ascertainable NOT Precatory.(unclear; subject to interpretation)     

·        Typical Issue arises when Will has language stating “I desire…” “I would like…” – does this set up an Ascertainable Standard or D’s desires?

·        Intent is Required and is Fatal to "Trust" if not present at inception of Trust:

·        Osbom v. Empire Life Insurance Co., 342 So. 2d 763 (Ala. 1977)


1.   TRUSTEE -holds Legal Title of property For the Benefit of Another, a/k/a Fiduciary Law of contracts has played important role in development of Fiduciary law.

a.       How important is a Trustee?

·        KEY: A Trust will NEVER fail for lack of a Tr’ee 

·        Court would appoint a substitute trustee if none existed.


2.      BENEFICIARY- holds Equitable Title of property held in Trust. A person who has any Present or Future Interest, Vested or Contingent, in the Trust; the owner of an interest by assignment or other transfer as it relates to a charitable Trust; and any other person entitled to enforce the Trust –

a.      Trust must vest in an Ascertainable Beneficiary prior to violation of Rule Against Perpetuities or No Trust Exists.

·        Reason-is that someone must be able to enforce the Trust

b.      A Trustee must be able to Ascertain the Beneficiary either expressly or from among a definite class of people. Connell v. Cole, 89 Ala 381.

·        If not at inception of the Trust it must be within the period of time allowed by the Rule against Perpetuities