The Law of Trusts
first Edition
Browne C. Lewis
Browne C. Lewis
Constitutional Law
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The Law of Trusts

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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About the Book

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.

About the Contributors


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. 

Table Of Contents
  • 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