By Fred Franke
Law Office of Frederick R. Franke, Jr. LLC
A recent Court of Special Appeals case, Shump v. Wannall, 2016 W.L. 588, 572-9 (10/4/16)(unreported), addressed whether a pour-over will is effective if the inter vivos trust comes into existence several weeks after the will is executed. The answer is no.
Maryland Estates & Trusts Art. § 4-411 provides that a legacy may be made to a revocable inter vivos trust, even if unfunded at the time of the testator death, if the trust instrument is in existence at the time that the will is executed. In part, the statute is meant to sidestep the “issue” of whether an unfunded trust exists and could therefore be a proper legatee. It also addresses whether the terms of the trust permitting amendment would violate the rules governing the formalities of wills.
The Maryland statute was derived from the Uniform Testamentary Additions to Trust Act (“UTATA”). The common law basis for validating pour-over devises is either grounded in the doctrine of incorporation by reference or by the doctrine of independent significance. Both of these doctrines are addressed by the Shump Court. [Read more…]