January 5th, 2012

There isn’t some magic language necessary to create a trust.  Generally, all you need is an expressed intent to create a trust and some property.  Sure, trust codes and common law  require a trustee, trustee duties, and adherence to the rule against perpetuities, but you get the idea.  Nevertheless, there is always a surprising amount of litigation over whether certain language in a will or other document creates a trust.

In Estate of Brill, the Mississippi Supreme Court was tasked with construing some language in a holographic will to determine what, exactly, the testator meant by the language.  The question was whether the language conveyed property in fee simple, created a condition precedent or created a testamentary trust.

Let’s take a look at the contents of Bobbye N. Brill’s holographic will. (more…)