Trust Language: “Necessary or Advisable” Distributions

The language of a trust is extremely important. And when a will, trust, and other estate documents form part of the same plan, they are interpreted together. Indeed, “[w]hen a trust and will form parts of the same plan, they must be construed together.” Shriners Hospital for Children v. Schaper, 215 S.W.3d 185, 189-90 (Mo. App. E.D. 2006). The instruments  must be “construed as a whole” and “harmonized” in light of the “purposes and scheme of the decedent.” Id. at 190.

Every trust is different. The meaning  depends on the language used and circumstances. For example, when a trustee calls for distributions to a beneficiary which are “necessary or advisable,” that can result in an “absolute gift” to the beneficiary or a disposition that depends on the beneficiary’s needs. Matter of TR Potter, Jr. Exempt Trust, 593 S.W.3d 556, 563 (Mo. App. E.D. 2019). When a clause says the “all income shall be distributed,” with no further qualification, this usually means there is an absolute gift. Id. If, on the other hand, the language says whatever the trustee “may deem necessary or advisable,” this means that the trustee is to exercise its discretion more freely.

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