The revocable inter-vivos trust is the cornerstone of modern estate planning. Despite the settlor’s retention of control over the disposition of the trust’s assets until the settlor’s death, the trust will govern the disposition of the assets at the settlor’s death without the trust being admitted to probate.
Given the extensive control retained by the settlor to revoke and/or amend the trust, in whole or in part, the question arises as to whether this “will substitute” should be subject to the substantive rules relating to wills, even though there are different formalities incident to the execution of a revocable inter-vivos trust than a will. Legislatures, courts, and legal commentators are focusing on this issue, in many instances, in the context of statutes which were enacted prior to the ascendancy of the revocable inter-vivos trust and which refer explicitly only to wills. Prof. John H. Langbein has persuasively noted:
The owner who retains both the equitable life interest and the power to alter and revoke the beneficiary designated has used the Trust form to achieve the effect of testation. Only nomenclature distinguishes the remainder interest created by a Trust from the mere expectancy arising under a Will.1
