The Trust
The Dallas Court of Appeals in a 2014 case had to determine if the Trustors use of the term “request” in his Texas trust meant the parties “must.” The case involved an arbitration clause in the Texas trust that said in section 14.02 “We request that any questions or disputes that may arise during the administration of this trust be resolved by mediation and if necessary, arbitration…” A dispute arose and one side demanded arbitration. The trial court refused to send the case to arbitration and the case was appealed. The appellants asked the court to overturn the trial court and send the case to arbitration. Their position was that the term request was used 10 times in the trust with three of those times adding the phrase “but do not require.” The word request in the arbitration clause did not have the qualifying “but do not require” phrase so the Trustors must have meant the word request to be obligatory. They claimed that the word was mandatory and not precatory (expressing a wish.)
Does a “Request” in a Trust Mean You “Must?”
In upholding the trial court and refusing to send the case to arbitration, the Dallas Appeals court held that the Trustors had defined the term “shall” in the trust. Shall was used over 450 times in the will. The court stated “The acts that Clarence and Mildred “requested” in the Trust document varywidely in scope and occur throughout the Trust document. Six of the ten times that Clarence and Mildred used the word “request,” they specifically stated the trustee was not required to follow the request or that the request did not limit the trustee’s investment authority in any way. Because Clarence and Mildred extensively used the mandatory term “shall” throughout the Trust document and repeatedly took care to clarify that their “requests” were not mandatory, we cannot conclude their failure to add “but do not require” to the “request” in section 14.02 of the Trust document was intended to express an intent that all disputes be resolved through mandatory arbitration.” No. 05-13-01341-CV.
Conclusion
Even when a will or trust is drawn with great care, disputes can arise. You must use an attorney to prepare your trusts and wills to lessen the chance a will contest or someone contesting the terms of a trust. Someone contesting a will or a trust is more likely to win if the will or trust is drawn poorly. We do not prepare wills or trusts since our practice is limited to litigation. You should contact an attorney in your area who handles estate planning and let them prepare your documents the right way.
