11. SULLIVAN v. BURKIN
1. Fact
Earnest Sullivan created an inter vivo trust and transferred his real property to himself as sole trustee. He had a right to revoke the trust. Upon his death, the trust went the successor trustees, George and Harold Cronin, the defendants. According to the will which Earnest left, there is almost nothing for his wife, Mary, the plaintiff, and he directed that his estate should go to the inter vivo trust. The plaintiff did not involve in creating the inter vivo trust.
The wife requested her share of the estate; however, the Probate Court rejected her claim. She appealed and the Appellant Court reported the case to the Supreme Court.
2. Issue
Whether a surviving wife can receive her statutory share when decedent’s assets and estate are held in an inter vivo trust.
3. Rules
1) the Restatement (Second) of Property § 11.4(1) (Tent. Draft No. 5, 1982)
"general power" definition
2) Kerwin v. Donaghy
Any claim of a surviving spouse was denied against the asset of a valid inter vivo trust created by the decedent who had substantial right and powers for the trust.
4. Application
1) Whether the inter vivo trust was invalid because it was testamentary. à No. the inter vivo trust is not testamentary.
P claimed that the inter vivo trust was an invalid testamentary disposition because the trust assets constitute of the estate of the decedent. Thus, the trust asset should be part of the estate for her elective share. However, the Court concluded that the trust had no testamentary character. As can be seen in Kerwin case the settlor had a general power to modify or revoke the trust during his life time, the testamentary disposition does not make the trust testamentary.
2) Whether, even if the trust was not testamentary on general principles, the widow has right for her share
In Kerwin v. Donaghy, the husband had a power to dispose his property in his lifetime, then right of the surviving spouse was denied and does not extent to the conveyed property by the decedent which excludes from the estate. Therefore, the plaintiff did not have the right to elective share in the asset of the trust. In the meanwhile, the Court announced not to follow the rule in the future because the public policy has been changed since 1945 and the right of the surviving spouse should not be restricted by the rule – it is neither equitable or logical. In addition, the motive or intention of the spouse in creating the trust should be considered.
5. Conclusion
The Court affirmed and dismissed the plaintiff’s complaint.
6. Feedback
general power of appointment
A general power of appointment gives the holder, also known as the donee, the broad power to give away the decedent’s property to whoever the holder determines. For example, if a holder of a power of appointment can give the property to anyone in the world, that is a general power of appointment.
If, however, the power of appointment holder can only choose to distribute the decedent’s property to a list of specified beneficiaries, then that holder instead has a special power of appointment.