Settlor intent is sometimes referred to as
the polestar of trust law. After all, in principle the maker of a trust
should have the last word about who will be beneficiaries of their trust and what exactly
they’ll inherit. On the other hand, settlor intent is not an
absolute. Anyone can make wild or outrageous requests
in their will, but that doesn’t mean they’ll be fulfilled. A settlor’s final wishes must correspond
to the law, and that, of course, includes California trust law. Limitations on settlor intent have long applied. Among them: prohibitions against illegal acts;
capricious purposes; and acts against public policy. Some scholars have opined that the maker of
a trust, a settlor, could burn his own Rembrandt, but he can’t convey a Rembrandt to a trust
and direct the trustee to destroy it. Evolving court-made and statutory rules are
trending toward the relaxation of rules for modifying trusts. Reasons for this include: trust terms are
getting longer; trusts are now fully enmeshed as part of middle-class estate planning and
are no longer the province of only the wealthy; trusts often last for the lifetime of the
beneficiaries; estate and income tax laws regularly change and impact the administration
and purposes of trusts; clients often don’t read trust instruments; and trusts can often
reflect the draftsman’s intent more than the settlor’s original intent. The last two points bring several cases to
mind that we’ve seen up close over the last several years. Let’s start with “Clients often don’t
read trust instruments.” We’ve had cases where the trust maker couldn’t
speak or read English yet signed a trust written in English. We’ve had cases there the trust maker was
illiterate, and the drafting attorney was oblivious to the fact. Of course, death bed trust change cases nearly
always raise the question of whether the death bed trust or trust amendment were ever read. How about the trust is more about the drafter’s
intent than the settlor’s intent? Long documents with weird provisions abound. Most individuals or couples visiting an estate
planner lawyer have relatively simple desires – take care of each other while alive, and
children or grandchildren after they are gone. Single spaced cookie cutter trusts with provisions
completely irrelevant to the trust makers’ circumstances are common. They don’t make the trust invalid, but the
provisions raise the question whether the draftsman of the trust was really listening. Trust mills are notorious for this. Sometimes with trusts spanning a hundred pages
for an individual with a house that would like to leave the house in trust for a child
or children. In any event what should count is what the
settlor wants. Granted, this is not always easy to determine. But it helps when the draftsman pays attention
to what is really being said. Hackard Law represents abused beneficiaries
in significant cases where we think that we can make a substantial difference and there
is a wrongdoer who can be made financially accountable for their wrongdoing. We focus our geographic practice in California’s
largest urban areas including Orange, Los Angeles, Santa Clara, San Mateo, Alameda and
Sacramento Counties. If you believe that you are an abused beneficiary
in a California trust and you want to talk about it, call us at Hackard Law (916) 313-3030. Thank you.