Testamentary trust

Testamentary trust

A testamentary trust (sometimes referred to as a will trust) is a trust which arises upon the death of the testator, usually under his or her will. Testamentary trusts are distinguished from "inter vivos" trusts, which are created during the settlor's lifetime.

For a testamentary trust, as the settlor is deceased, he will generally not have any influence over the trustee's exercise of discretion, although in some jurisdictions it is common for the testator to leave a letter of wishes for the trustees.

In practical terms, testamentary trusts tend to be driven more by the needs of the beneficiaries (particularly infant beneficiaries) than the by tax considerations which tend to dominate considerations in "inter vivos" trusts.

If a testamentary trust fails, the property will usually be held on resulting trusts for the testator's residuary estate. Many famous English trust law cases were on behalf of the residuary legatees under a will seeking to have testamentary trusts declared void so as to inherit the trust property (the most famous, or infamous, example of which is probably "Re Diplock" [1941] Ch 253, which resulted in the suicide of one of the trustees who was personally liable to account for trust funds that had been disbursed for what he thought were perfectly valid charitable trusts).


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