"Conditionally" Irrevocable Trusts
Two Examples


These examples illustrate different ways that the concept of a "conditionally" irrevocable trust could be implemented. The 1st example is the simplest.

Remember our purpose is to provide stroke victims, Alzheimer sufferers and other vulnerable individuals the means to protect their estates against fraud, undue influence, and other wrongdoing.

Also remember why such protection is needed. Recall the evidence in the Estate of Irving Fields that was ignored by the court. Recall the articles by experts like Irwin Perr, MD, JD and Margaret Singer, PhD.

Realize that under existing law, when there is estate fraud or other wrongdoing, it must usually be challenged in a civil court. Prosecutors often lack the resources or are reluctant to investigate and prosecute these "non-violent" offenses. The estate and/or beneficiaries become dependent upon lawyers and must be able to afford substantial legal fees and other expenses. Furthermore, the injured parties face a burden of proof that typically cannot be met because their principal witness, the testator, is dead and so cannot testify.

Example 1: A trust that differs from an ordinary IRREVOCABLE trust in only one aspect: it remains ineffective, amendable and revocable until the operative condition(s) specified by the Settlor are satisfied.

("Settlor" is synonymous with "Grantor" and "Trustor". This is the person whose property is placed into the trust)

Example 2: A trust that differs from an ordinary REVOCABLE trust in only one aspect: it becomes IRREVOCABLE when the operative condition(s) specified by the Settlor are satisfied


The distinguishing feature of a "conditionally" irrevocable trust is its AUTOMATIC SWITCH from amendable and revocable to unamendable and irrevocable as soon as the conditions specified by the Settlor are satisfied - unless the Settlor has revoked this trust while he still had the power to do so. Each of our examples incorporates this feature.

This AUTOMATIC SWITCH makes it easier for a Settlor to use an irrevocable trust in order to protect the interests of his beneficiaries. It does this by preserving the Settlor's power to amend and revoke his trust until a later time.

Opponents of such a trust might argue that this feature is not necessary, that the Settlor only needs a revocable trust for this purpose. They might argue that in order for the Settlor to revoke his trust, he must be competent, as well as free from duress and other undue influences. In other words, a revocable trust automatically becomes irrevocable whenever the Settlor becomes incompetent or a victim of undue influences.

Such an argument is fallible. A revocable trust does not automatically become irrevocable whenever the Settlor becomes incompetent or a victim of undue influences. It remains revocable so long as a court judges that the Settlor was competent and not unduly influenced. As noted at the top of this page, there are many reasons why a Settlor would not want to leave this decision up to a court.