Also known as: pour-over · pour over · pourover will · pour-over will · pour-over trust · pourover trust
Written by attorneys — see sources below.
A provision in a will that adds property to an inter vivos trust or funds a trust whose terms are set forth in an instrument executed during the testator's lifetime. The devise may be validated by statute, incorporation by reference, or independent significance. Revocation or termination of the referenced trust before the testator's death causes the devise to lapse unless the will provides otherwise.
Parker Phillips executed a will that directed the residue of his estate to the trustee of a revocable trust he had created years earlier with his sister. The trust instrument had been signed during his lifetime though it remained unfunded until death. After Parker died, the personal representative transferred the estate assets into the trust for administration according to its terms.
Priscilla Parks signed a will pouring her brokerage account into a trust identified by a corporate employee benefits booklet that her employer had prepared for workforce administration. The booklet existed apart from any testamentary purpose and had been modified by the employer after the will was executed. The court upheld the devise because the booklet supplied the trust terms through independent significance.
Philip Powell's estate included assets poured over from his will into a terminated inter vivos trust. His heirs filed a federal action claiming the pour-over lapsed and seeking distribution under state intestacy rules. The court dismissed the suit, holding that the dispute over the poured-over assets remained a core probate matter outside federal jurisdiction.
Vickie Lynn Marshall, also known as Anna Nicole Smith, met J. Howard Marshall II in October 1991 and married him on June 27, 1994. J. Howard died on August 4, 1995. Although he had given Vickie substantial gifts and money during their relationship, his will made no provision for her. Vickie maintained that J. Howard had intended to secure her future through a catchall trust. Respondent E. Pierce Marshall, one of J. Howard’s sons, stood as the sole ultimate beneficiary under his father’s estate plan, which consisted of a living trust and a pourover will directing all remaining assets into the trust. In January 1996, while J. Howard’s estate remained subject to probate proceedings in Harris County, Texas, Vickie filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Central District of California. In June 1996 Pierce filed a proof of claim in that bankruptcy case asserting that Vickie had defamed him through statements made to the press shortly after J. Howard’s death. Vickie answered and asserted a counterclaim alleging that Pierce had tortiously interfered with her expected gift by imprisoning J. Howard against his wishes, surrounding him with hired guards, making misrepresentations to him, and transferring property contrary to his expressed intentions. The Bankruptcy Court granted summary judgment to Vickie on Pierce’s defamation claim. After a trial on the merits it entered judgment for Vickie on her tortious interference counterclaim and awarded her more than $449 million in compensatory damages, less any amount recovered in the Texas probate action, plus $25 million in punitive damages. Pierce then moved to dismiss for lack of subject-matter jurisdiction, arguing that the claim belonged exclusively in the Texas probate proceedings. In the Texas Probate Court, Pierce sought a declaration that the living trust and will were valid. Vickie initially challenged the instruments and asserted her own tortious interference claim there but voluntarily dismissed both claims after the Bankruptcy Court’s judgment. Following a jury trial the Probate Court declared the trust and will valid. On review of the Bankruptcy Court’s judgment the District Court rejected the probate-exception argument. The court adopted the Bankruptcy Court’s findings with supplements. It awarded Vickie approximately $44.3 million in compensatory damages together with an equal amount in punitive damages. The Ninth Circuit reversed. It held that the probate exception barred federal jurisdiction because the claim raised questions ordinarily decided by a probate court and because the Texas Probate Court had asserted exclusive jurisdiction over all of Vickie’s claims. The Supreme Court granted certiorari in 2005.
View caseThe devise lapses unless the will provides otherwise. The property then passes under the residuary clause or by intestacy. Multiple bar questions confirm that revocation or termination of the trust before death defeats the pour-over when the will is silent.
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Validation occurs through incorporation by reference or independent significance. Independent significance is preferred because it permits post-execution amendments and does not require the trust instrument to exist at will execution. Incorporation by reference is used only when no other basis is available.
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Yes. Both the original and revised Uniform Testamentary Additions to Trusts Acts expressly provide that the devise is not invalid because the trust was amended after the will or after the testator's death. The poured-over property is administered under the governing instrument as amended.
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Yes. The Restatement definition expressly includes a trust that was not funded during the testator's lifetime provided its terms appear in an instrument executed while the testator lived. The will itself can fund the trust at death.
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…an evidentiary hearing. The court reasoned: “The intent of Mr. Taliaferro (as expressed in the trust document) to create a pour-over trust is clear enough, but the fact that he did no overt acts transferring property to the trust leaves his intent in question.” After the evidentiary hearing, the trial court found the Will C.…