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20 Suffolk U. L. Rev. 146 (1986)
Probate Law - Unfunded Inter Vivos Trust Is a Valid Receptacle for Testamentary Pour over Assets

handle is hein.journals/sufflr20 and id is 176 raw text is: Probate Law-Unfunded Inter Vivos Trust is a Valid Receptacle for Testamentary Pour Over Assets-Clymer v. Mayo, 393 Mass. 754, 473 N.E.2d 1084 (1985). Pour over provisions in a will which, at death, transfer estate assets to a funded, amendable, inter vivos trust do not violate the statute of wills.' The common law theory of independent legal sig- nificance provides the legal rationale sustaining this estate planning device.' In Clymer v. Mayo,3 the Supreme Judicial Court of Mas- sachusetts considered whether a settlor may create a valid inter vivos trust solely by means of a pour over provision, when the trust does not contain a trust corpus until the death of the settlor. Reasoning that Massachusetts General Laws chapter 203, section 3B modified the common law regarding the need for a trust corpus, the court held that an inter vivos trust, bearing independent legal significance, does not need a trust corpus during the settlor's life to receive pour over assets from a will.' In 1973, Clara A. Mayo (decedent) and her husband James A. Mayo (Mayo) executed reciprocal wills and indentures of trust, each naming the other spouse as principal beneficiary.6 The residuary assets i. Second Bank-State St. Trust Co. v. Pinion, 341 Mass. 366, 371, 170 N.E.2d 350, 354 (1960); accord Canal Nat'l Bank v. Chapman, 157 Me. 309, 316, 171 A.2d 919, 922 (1961) (pour over provision in will adding property to amendable trust not violative of wills statute even though amendment not executed with statutory formality); cf. Nat'l Shawmut Bank v. Joy, 315 Mass. 457, 471, 53 N.E.2d 113, 122 (1944) (freely alterable and revocable inter vivos trust which made testamentary disposition without strict compliance with statute of wills valid). See generally Flickinger, The Pour-Over Trust and the Wills Statutes; Uneasy Bedfellows, 52 Ky. L.J. 731, 738 (1964) (tracing genesis of pour over provisions in case law); Hawley, The Statutory Blessing and Pour Over Problems, 102 TR. & EST. 896, 896 (1963) (neither common law nor statutory language adequately explains legal theory sustaining pour over trust as nonviolative of statute of wills); McClanahan, The Pour-Over Device Comes of Age, 39 S. CAL. L. REV. 163 passim (1966) (survey of judicial recognition of pour over device). 2. See Canal Nat'l Bank v. Chapman, 157 Me. 309, 312, 171 A.2d 919, 920 (1961) (amendable, funded, inter vivos trust could receive pour over property in accordance with amended trust terms by operation of doctrine of independent legal significance); Second Bank- State St. Trust Co. v. Pinion, 341 Mass. 366, 371, 170 N.E.2d 350, 353 (1960) (independent legal significance removes from the ambit of the statute of wills pour over assets passing in accordance with terms of amended trust); cf. UNIF. Ptoa. CODE § 2-512, 8 U.L.A. 126 (1983) (will may refer to extrinsic acts and events which have significance apart from effect upon testamentary disposition). 3. 393 Mass. 754, 473 N.E.2d 1084 (1985). 4. Id. at 762, 473 N.E.2d at 1087. 5. Id., 473 N.E.2d at 1090; see MASS. GEN. LAWS ANN. ch. 203, § 3B (West Supp. 1985) (receptacle trust may receive pour over assets regardless of existence, size, or character of trust corpus). 6. 393 Mass. at 756, 473 N.E.2d at 1087. In the event that Mayo survived his wife, the decedent's estate plan divided the trust assets into two separate funds, with Trust A, the

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