Connolly Gallagher attorneys Gregory J. Weinig, Charles J. Durante and Scott E. Swenson were published in the November 2013 issue of Trusts & Estates magazine. Their article, entitled “When Does a Signed Trust Document Not Create a Trust?” (available below), discusses the recent decision of the Delaware Supreme Court in Otto v. Gore, in which the court set aside a signed, ostensibly irrevocable trust instrument, instead holding that a later signed instrument governed the trust. The court found that when the grantors signed the earlier instrument, they nonetheless didn’t intend to create a trust.
As surprising as this holding may have been, it was not without precedent. Lines of cases anchored by opinions of the high courts in Massachusetts, Colorado, and Connecticut had reached similar results over the last few decades. And the reasoning in all of the cases is fully supported by the best-known treatises: Bogert, Scott, and the Restatement (Third) of Trusts. The article also provides practical lessons for attorneys and fiduciaries, including the sorts of factual scenarios in which these issues might need to be confronted.
You may access the article here. Feel free to contact the authors with any questions.
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