1 Drafting New York Wills § 8.01

Summary

This chapter focuses on the drafting of dispositive provisions in testamentary trusts. By definition, a testamentary trust is a trust that a testator intends to create under a will. Perforce, a testamentary trust is part of the will; as a result, many of the rules for wills and will doctrines will apply to testamentary trusts. In contrast, lifetime trusts, such as the revocable trust which is the subject matter of Chapter 18, below, are created by stand-alone documents.

The drafting of dispositive provisions in a testamentary trust involves the underlying issue of how to split up the enjoyment of trust income and principal over time. The reader should understand three basic aspects of testamentary trusts:

• 1.The trust must be validly created under the testator’s will;
• 2.A testamentary trust will have at least one future interest since, at the least, possession of some trust principal is delayed until some future time after the testator’s death; and
• 3.Subject to public policy limitations and...