The contingent remainder beneficiaries of an irrevocable trust may seek judicial enforcement of its terms during the life of the trust

Charles E. Rounds, Jr. - Suffolk University Law School
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A trust beneficiary's interest is an equitable property interest. It can be a present interest or a future interest, and, whether vested or contingent, the interest is property. Even a contingent equitable remainder-in-corpus incident to an ongoing irrevocable trust is infinitely more substantive than a mere expectancy. Admittedly the nomenclature is confusing. Here is why: A non-possessory contingent future equitable property interest incident to an ongoing trust relationship, for example, is a future property interest that is nonetheless presently enforceable. See, e.g., Berry v. Berry, --- S.W.3d --- (2022), 65 Tex. Sup. Ct. J. 997, 2022 WL 1510330. It is an interest that is infinitely more substantive than a mere expectancy in that in the remainder beneficiary’s bundle of rights are some rights that are, again, presently enforceable. Id. The right to seek removal of the trustee for cause, for example. An expectancy, on the other hand, is generally not presently enforceable. Think the dispositive provision in the will of someone who is not yet deceased. A will being testamentary, it speaks only at death. Id. What, then, is the practical significance of all of this? In a word: standing. Were a contingent equitable remainder-in-corpus incident to an irrevocable entrustment a mere expectancy, the holder would not have standing to seek enforcement of the trust’s terms. But it is not a mere expectancy. The question of standing in the trust context is taken up generally in §5.1 of Loring and Rounds: A Trustee’s Handbook (2022), the relevant portion of which section is reproduced in the appendix below. The handbook itself is currently available for purchase at: https://law-store.wolterskluwer.com/s/product/loring-rounds-a-trustees-handbook-2022e-misb/01t4R00000OVWE4QAP.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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