The Law of Trusts
first Edition

The Law of Trusts

by Browne C. Lewis

Browne C. Lewis, The Law of Trusts, Published by CALI eLangdell Press (2013). Available under a Creative Commons BY-NC-SA 3.0 License.  CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission. Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI.

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The use of testamentary trusts is becoming an important part of estate planning. As a result, students who want to make a living as probate attorneys will need to know how trusts fit into estate planning. In addition, bar examiners realize that it is important for students to have a basic knowledge of trust law. That realization will result in bar examination questions that test that knowledge. This book is designed for use as a supplementary text for a course on wills and trusts and the primary text in a seminar or course exploring the law of trusts.

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Professor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the Center of Health Law & Policy at Cleveland-Marshall College of Law. Prior to joining the faculty at Cleveland-Marshall, Professor Lewis was an associate professor at the University of Detroit Mercy School of Law, a visiting professor at the University of Pittsburgh School of Law, a summer visiting professor at Seattle University School of Law and a legal writing instructor at Hamline University School of Law.  Professor Lewis has also taught in the American Bar Association CLEO Summer Institute.

Professor Lewis has been a visiting scholar at the Brocher Foundation in Geneva, Switzerland, the Hasting Center, and Yale University’s Interdisciplinary Center for Bioethics.  As a Senior Fulbright Specialist, Professor Lewis conducted research at Hebrew University and Haifa University in Israel.  Professor Lewis was also a Core Fulbright Scholar at King’s College in London, and a Robert Wood Johnson Public Health Law Scholar in Residence at the Cleveland Public Health Department.

Professor Lewis writes in the areas of estate planning, probate and reproductive law.  Her article on human oocyte cryopreservation was recently published in the Tennessee Law Review.  In 2012, New York University Press published Professor Lewis’ book on paternity and artificial insemination. Professor Lewis has recently completed a book on posthumous reproduction for Routledge Press. 

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Introduction. The Law of Trusts
Introduction.1 - About the Author
Introduction.2 - Notices
Introduction.3 - About CALI eLangdell Press
Introduction.4 - Preface
Chapter One. The Capacity to Create a Testamentary Trust
1.1 - Parties Involved in a Trust Arrangement
1.2 - Testamentary Capacity
1.2.1 - Mental Capacity
1.2.2 - Insane Delusion
1.2.3 - Undue Influence
1.2.4 - Fraud and Duress
Chapter Two. Creation of a Private Trust
2.1 - Intent to Create a Trust
2.2 - Requirement of Trust Property
2.3 - Necessity of Trust Beneficiaries
Chapter Three. Categories of Private Trusts
3.1 - Private Expressed Trusts
3.1.1 - Inter vivos Trusts vs. Testamentary Trusts
3.1.2 - Totten/Tentative Trust
3.2 - Trusts Created By Operation of Law
3.2.1 - Resulting Trust
3.2.2 - Constructive Trust
3.2.3 - Honorary Trusts
Chapter Four. Discretionary and Support and the Rights of the Beneficiary’s Creditors
4.1 - Discretionary Trusts
4.2 - Support Trust
Chapter Five. Spendthrift Trusts and Creditors
5.1 - Expressed Spendthrift Trust
5.2 - Implied Spendthrift Trust
5.3 - Creditors
Chapter Six. Modification and Termination of Trusts
6.1 - Termination
6.2 - Claflin and Material Purpose
6.3 - Deviation and Changed Circumstances
6.4 - Removal of the Trustee
Chapter Seven. Creation and Modification of Charitable Trusts
7.1 - Creation of the Charitable Trust
7.2 - Modification/Cy Pres
Chapter Eight. Supervision/Enforcement of Charitable Trusts
8.1 - Donor Standing
8.2 - Beneficiary Standing
Chapter Nine. Treatment of Trust Property
9.1 - The Duty to Collect and Protect Trust Property
9.2 - The Duty to Earmark Trust Property and to Not Comingle Trust Funds
9.3 - The Duty Not to Delegate
9.4 - Duty of Prudence
Chapter Ten. Duty of Loyalty
Chapter Eleven. Duty of Impartiality
Chapter Twelve. Duty to Account and Inform
12.1 - To Account
12.2 - To Inform
12.3 - The Trustee’s Liability
Chapter Thirteen. Power of Appointments