3.3 Enforceable Rights to Beneficiaries
If good faith was purely subjective (the “pure heart” test), enforcement would illusory – effectively negating the trust. Trusts presuppose giving enforceable rights to beneficiaries. In a Delaware case, for example, the trust instrument stated that distributions by a committee of trustees were “not subject to review by any court.” In that case, the court ignored the provision: “A trust where there is no binding legal obligation on a trustee is a trust in name only and more in the nature of an absolute estate or fee simple grant of property.”  McNeil v. McNeil, 798 A.2d 503, 509 (Del. Super. Ct. 2002). There are potential adverse federal tax consequences if a trustee cannot be held to a reasonability standard as to discretionary distributions. One of the exceptions to grantor income tax inclusion, for example, requires that a power to appoint must be under a reasonably definite, ascertainable standard: “[I]f a trust instrument provides that the determination of the trustee shall be conclusive with respect to the exercise or non-exercise of a power, the power is not limited by a reasonably definite standard.” Treas. Reg. § 1.674(b)-1(b)(5)(i). A similar position could be advanced for federal gift and estate tax purposes. Thus when drafting provisions giving a trustee, who is also a beneficiary, distribution discretion under “ascertainable standards,” it may be prudent not to use extended discretion language. Generally, of course, a trust without the trustee’s obligation to account is not a trust: “A settler who attempts to create a trust without any accounting in the trustee is contradicting himself. A trust necessarily grants rights to the beneficiary that are enforceable in equity.” Bogert, supra note 34, at § 974.