- 1. Look for UE particularly where the trustee procured the transfer as a result of fraud or undue influence or stood in a confidential relationship with the donor
- c. UTC §407: Remedy – Failed Testamentary Trust
- Testamentary trust fails for want of writing, where…
- 1. Beneficiary under a will agrees to hold the property in question as a trustee for the benefit of others, but
- 2. The terms of the testamentary trust are not in the will (or incorporated by ref)
- Remedy is to impose a constructive trust – property is ordered to be distributed to the intended beneficiaries – on both a secret trust or a semi-secret trust,
- 1. Secret trust is where the face of the will makes no reference to the testator’s intent that the beneficiary identified in the will was to take in a fiduciary capacity as a trustee, and not as an ordinary beneficiary
- 2. Semi-secret trust is where the will hints at or expresses the testator’s intent that the beneficiary is to take for the benefit of others, but the identity of the trust beneficiaries and/or the terms of the trust are not set forth in a writing that can be given effect
- d. Remedial Trusts
- Constructive trusts and resulting trusts are remedial trusts that arise by operation of law as a matter of equity
- 1. Not subject to the traditional trust requirements
- Constructive trusts typically arise and are imposed by courts to prevent unjust enrichment
- 1. Court will order the party currently holding title to the property to transfer the property to the party that the court concludes, as a matter of equity, is entitled to it
- Resulting trusts arise whenever a trust fails in whole or in part
- 1. Court will order the property transferred back to the settlor (or the settlor’s estate if the settlor himself is dead)

### Revocable Trusts

- 1. Inter Vivos Revocable Trusts
- a. Widely recognized as valid will substitutes that do not have to comply with Wills Act formalities, even where the settlor is also the trustee and life beneficiary
- Way to transfer trust on death that is non-probate and outside the will
- Can adjust its terms any time up until death
- 2. UTC §603 Approach to Revocable Inter Vivos Trusts
- a. The UTC provides that while a trust is revocable, the rights of the beneficiaries are subject to the control of the settlor and the duties of the trustee are owed exclusively to the settlor
- b. Beneficiaries under a revocable trust have no standing to contest amendments to the trust bc a beneficiary’s interest is, at best, contingent and unenforceable during the settlor’s lifetime
- 3. UTC §602(a): Revocability of Inter Vivos Trusts
- a. UTC reverses the CL rule and provides that a settlor may revoke or amend an inter vivos trust unless the trust expressly states it is irrevocable – presumes revocability
- CL: Inter vivos trusts are presumed to be irrevocable unless the terms of the trust expressly state that the trust is revocable
- 4. Revocation – Particular Method Expressed
- a. UTC §602(c): Where the trust sets forth a particular method of revocation, it should not be construed as the exclusive method unless the provision expressly makes it exclusive
- Substantial compliance w/ the particular method of revocation is sufficient
- Will executed after the trust, which specifically refers to the trust of the power to revoke, can revoke a revocable trust if the trust terms do not specify an exclusive method of revocation and if the will is not thereafter revoked