1.1.6 Lack of Separation
If there is no separation between the identity of the trustee and the beneficiary, then there would be no one to enforce the fiduciary obligations. The Court of Special Appeals had adopted this essential aspect of a trust in Jacob v. Davis, 128 Md. App. 433 (1999) when it quotes the observation in Bogert on Trusts that there must be an obligation to account:
A [testator] who attempts to create a trust without any accountability in the trustee is contradicting himself. A trust necessarily grants rights to a beneficiary that are enforceable in equity. If the trustee cannot be called to account, the beneficiary cannot force the trustee to any particular line of conduct with regard to the trust property or sue for breach of trust. The trustee may do as he likes with the property, and the beneficiary is without remedy. If the court finds that the settlor really intended a trust, it would seem that accountability in chancery or other court must inevitably follow as an incident. Without an account the beneficiary must be in the dark as to whether there has been a breach of trust and so is prevented as a practical manner from holding the trustee liable for a breach. (Quoting Bogert at 450.)
The Uniform Trust Code (2003) provides that a trust is created only if “the same person is not sole trustee and sole beneficiary.” UTC § 402(a)(5). UTC Comment on this section states: “Subsection (a)(5) addresses the doctrine of merger, which, as traditionally stated, provides that a trust is not created if the settlor is the sole trustee and sole beneficiary of all beneficial interests. The doctrine of merger has been inappropriately applied by the courts in some jurisdictions to invalidate self-declarations of trust in which the settlor is the sole life beneficiary but other person are designated as beneficiaries of the remainder. The doctrine of merger is properly applicable only if all beneficiary interest both life interest and remainders, are vested in the same person, whether in the settlor or someone else. An example of a trust to which the doctrine of merger would apply is a trust of which the settlor is sole trustee, sole beneficiary for life, and with the remainder payable to the settlor’s probate estate. On the doctrine of merger generally, see Restatement (Third) of Trust Section 69 (Tentative Draft No. 3, 2001); Restatement (Second) of Trust Section 341 (1959).
Thus, under the UTC a revocable trust with the settlor the sole trustee and sole lifetime beneficiary will be recognized as a valid trust if remaindermen are named. The Davis issue is solved by UTC § 603 which states that while a trust is revocable and the settlor has the capacity to revoke, the remaindermen cannot enforce their rights and the duty of the trustee to provide information is solely to the settlor.