Wills, Trusts and Estates: Trusts: Pour-over will + Cy-près doctrine

A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his or her estate at the time of his or her death shall be distributed to the Trustee of the trust. Such a device was always void at English common law, because it was not deemed a binding trust, in that the testator can change the disposition of the trust at any time and therefore essentially execute changes to the will without meeting the formalities required for the change.

More recently, however, a number of jurisdictions have recognized the validity of a pour-over will. In the jurisdictions in the U.S. which allow a pour-over will, testators do not usually put all of their assets into trusts for the reasons of liquidity, convenience, or simply because they did not get around to doing so before they died. A pour-over clause in a will gives probate property to a trustee of the testator's separate trust and must be validated either under incorporation by reference by identifying the previously existing trust which the property will be poured into, or under the doctrine of acts of independent significance by referring to some act that has significance apart from disposing of probate assets, namely, the revocable living trust (inter vivos trust). The testator's property is subject to probate until such time as the pour-over clause is applied, and the estate assets "pour" into the trust. The trust instrument must be either in existence at the time when the will with the pour-over clause is executed, or executed concurrently with the will to be a valid pour-over gift. However, the trust need not be funded inter vivos. The pour-over clause protects property not previously placed in a trust by pouring it into the previously established trust through the vehicle of the will.

The Cy-près doctrine is a legal doctrine which allows a court to amend a legal document to enforce it "as near as possible" to the original intent of the instrument, in situations where it becomes impossible, impracticable, or illegal to enforce it under its original terms. The doctrine first arose in courts of equity, originating in the law of charitable trusts, but it has since been applied in the context of class action settlements in the United States.

An example of the doctrine's application is found in the Massachusetts Supreme Judicial Court case Jackson v Phillips, where the testator, Francis Jackson, created a trust to be used to "create a public sentiment that will put an end to negro slavery in this country". Four years after Jackson's death, slavery was abolished by the Thirteenth Amendment, nullifying the express purpose of the trust. Some of Jackson's family members attempted to dissolve the trust in order to collect its proceeds, but the court disagreed, invoking Cy-près and finding that Jackson's intent would be best served by using the trust "to promote the education, support and interests of the freedmen, lately slaves, in those states in which slavery had been so abolished".