Essay Questions and Selected Answers July 2004

(res), and 7) be delivered.2. Lack of TrusteeThe facts state that the trust lac[k]ed a trustee. The lack of a trustee, however, isnot fatal, as a court can appoint a trustee to administer the trust.3. Trust PropertyThe trust property is clearly identified in the will, as “five percent of my estate...to bepaid in approximately equal installments over the 10 years following my death...”Therefore, this requirement is satisfied.4. DeliveryThe delivery requirement is met through the inclusion of the trust into Hank’s will.5. Unascertainable BeneficiaryThe fact that the beneficiary is not named poses the biggest problem for the trust.In order for the trust to be valid, a beneficiary must be ascertainable. In the present case,the beneficiary is not named, but rather is described as “the person who went skiing withme most often during the 12 months preceding my death.” Courts can use a variety ofmethods to ascertain the identity of a beneficiary when he or she is not specifically namedon a will, such as: Incorporation by Reference or Facts of Independent Significance.Neither one of these are helpful in the present case.Incorporation by reference allows a testator to incorporate into a will a document orwriting if it is in existence at the time of the will, a clear identification is made, and the intentto incorporate is present. In the present case, the identity of beneficiary was not presentlyin existence. Therefore, this method fails to assist in ascertaining the beneficiary.Facts of independent significance can also be used to incorporate outside items intoa will. Although the identity of the person most frequently skiing with Hank would haveindependent significance, it is of little help here since Hank suffered a serious injury to hisleg and thus gave up skiing. Therefore, this method also fails to assist in ascertaining theidentity of a beneficiary.When there is no ascertainable beneficiary, a resulting trust occurs. This meansthat the trust property returns to the settler’s estate.5. Cy PresFred, however, will argue that under the doctrine of cy pres, the property should not25