Language In Holographic Will Conveyed Property In Fee Simple – It Did Not Create A Condition Precedent Or A Testamentary Trust
January 5, 2012
Authored by: Luke Lantta
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.
Brill’s holographic will stated:
I, Bobbye Brill, leave my home and contents to my sister, Shirlee Phillips. My Thunderbird car I leave to my brother, Frank Nichols. The remainder of my estate I leave to my sister, Shirlee Phillips, with the understanding she will take care of my mother, Annie Nichols. Please be sure this is carried out.
Frank Nichols, individually and as executor of Annie Nichols’s estate, filed a petition for construction of Brill’s will, requesting that the final two sentences of Brill’s will be construed as either: (1) creating a testamentary trust benefiting Annie Nichols, with the residuary passing as intestate property; or (2) void due to the lack of termination date for the proposed trust. Shirlee Phillips and Kathryn Kennington, as co-administratrixes of the estate of Brill, requested that the last two sentences of Brill’s will be construed as creating a residuary bequest to Phillips.
A chancellor found that the third sentence of Brill’s will left the remainder of Brill’s estate to her sister, Shirlee Phillips, on the condition that she take care of her mother, Annie Nichols. The final sentence of the will referred to each and every prior provision of the will. Furthermore, according to the trial court, the third sentence of the will made very clear that if Shirlee Phillips took care of her mother, Annie Nichols, then Shirlee Phillips would be entitled to the remainder of Brill’s estate. After an evidentiary hearing on whether she took care of Nichols, the residuary estate was awarded to Shirlee Phillips.
The Mississippi Supreme Court found that the end result was correct, but the way the chancellor got there was wrong. Brill did not create a conditional bequest. Brill did not create a testamentary trust either. What she did was convey her residuary estate to Phillips in fee simple. The third sentence of the will was a mere precatory expression of Brill’s wish or desire and was not imperative.
Conditions in wills are not favored and if the words in a will are fairly capable of a construction that would not impose a condition, then the court should favor that construction. If Brill intended to condition her bequest to Phillips on Phillips’s care of Nichols, then Brill needed to do a better job of expressly stating it.