Testamentary Trust


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Baker v. Merrill Lynch Trust Co. - Charitable bequest and the “cy pres” doctrine

Posted: March 23rd, 2009 by Gaslowitz Frankel LLC

A testator (person who executes a will) left the bulk of her estate to a trust.  Under the terms of the trust, some assets were to be distributed to named heirs with most of the remainder of her estate to go to a foundation.  However, the testator died before she actually established the foundation.  Merrill Lynch, as trustee, filed a petition asking the trial court to apply the “cy pres” doctrine, which provides that if a charitable bequest or gift cannot be effected in the exact manner provided by the testator or donor, the court can exercise its power to fulfill the intention of the testator as closely as possible.  The issue here was whether the testator actually had a charitable intent.  The trial court ruled that since the language of the trust did not include the word charity or any mention of a charitable purpose, the assets should go to the heirs.  

The Court of Appeals, however, noted that the term “foundation” was ambiguous, because it may be a charitable or non-charitable entity, and thus the trial court should have considered evidence outside the language of the trust to determine the testator’s intent.  The matter was sent back to the trial court for reconsideration. 

286 Ga. App. 767 (2007)

Related News   Probate and Estate Disputes, Testamentary Trust, Trust Disputes, Will Disputes, Will and Estate Disputes
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