Also known as: pour-over · pour over · pourover · pour-over will · pour-over trust
Written by attorneys — see sources below.
A provision in a will that adds property to an inter vivos trust or funds a trust that was not funded during the testator's lifetime but whose terms are in a trust instrument executed during the testator's lifetime. The devise may be validated by statute, incorporation by reference, or independent significance.
Pierce Patterson executes a will that devises the residue of his estate to the trustee of an inter vivos trust he created years earlier for his children. At his death the trust holds assets and the will identifies it by name. The pour-over adds the probate assets to the existing trust for administration under its terms.
Phuong Pham signs a will pouring her brokerage account into a trust identified by a corporate benefits booklet her employer maintains for employee compensation. The booklet exists for employment purposes separate from the will. The pour-over is validated because the booklet supplies the trust terms with independent significance.
Patrick Phan leaves assets via a pour-over will to a trust. After his death a dispute arises over whether claims concerning the trust assets belong in probate court or federal court. The pour-over structure determines whether the assets are treated as part of the probate estate for jurisdictional purposes.
Vickie Lynn Marshall, also known as Anna Nicole Smith, met J. Howard Marshall II in October 1991 and married him on June 27, 1994. J. Howard died on August 4, 1995. Although he had given Vickie substantial gifts and money during their relationship, his will made no provision for her. Vickie maintained that J. Howard had intended to secure her future through a catchall trust. Respondent E. Pierce Marshall, one of J. Howard’s sons, stood as the sole ultimate beneficiary under his father’s estate plan, which consisted of a living trust and a pourover will directing all remaining assets into the trust. In January 1996, while J. Howard’s estate remained subject to probate proceedings in Harris County, Texas, Vickie filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Central District of California. In June 1996 Pierce filed a proof of claim in that bankruptcy case asserting that Vickie had defamed him through statements made to the press shortly after J. Howard’s death. Vickie answered and asserted a counterclaim alleging that Pierce had tortiously interfered with her expected gift by imprisoning J. Howard against his wishes, surrounding him with hired guards, making misrepresentations to him, and transferring property contrary to his expressed intentions. The Bankruptcy Court granted summary judgment to Vickie on Pierce’s defamation claim. After a trial on the merits it entered judgment for Vickie on her tortious interference counterclaim and awarded her more than $449 million in compensatory damages, less any amount recovered in the Texas probate action, plus $25 million in punitive damages. Pierce then moved to dismiss for lack of subject-matter jurisdiction, arguing that the claim belonged exclusively in the Texas probate proceedings. In the Texas Probate Court, Pierce sought a declaration that the living trust and will were valid. Vickie initially challenged the instruments and asserted her own tortious interference claim there but voluntarily dismissed both claims after the Bankruptcy Court’s judgment. Following a jury trial the Probate Court declared the trust and will valid. On review of the Bankruptcy Court’s judgment the District Court rejected the probate-exception argument. The court adopted the Bankruptcy Court’s findings with supplements. It awarded Vickie approximately $44.3 million in compensatory damages together with an equal amount in punitive damages. The Ninth Circuit reversed. It held that the probate exception barred federal jurisdiction because the claim raised questions ordinarily decided by a probate court and because the Texas Probate Court had asserted exclusive jurisdiction over all of Vickie’s claims. The Supreme Court granted certiorari in 2005.
View caseThe devise lapses unless the will provides otherwise. The specific gift to the trustee fails and the property passes under the residuary clause or by intestacy.
Supporting sources
Validation occurs through statute, incorporation by reference, or independent significance. A statute such as the Uniform Testamentary Additions to Trusts Act commonly supplies the authority even if the trust is created or amended after the will.
Supporting sources
No. Modern statutes expressly provide that the devise remains valid even if the trust is amended after the will is executed or after the testator's death, and the poured assets are administered under the amended terms.
Supporting sources
…an evidentiary hearing. The court reasoned: “The intent of Mr. Taliaferro (as expressed in the trust document) to create a pour-over trust is clear enough, but the fact that he did no overt acts transferring property to the trust leaves his intent in question.” After the evidentiary hearing, the trial court found the Will C.…