In re Estate of Kirkman

17 Va. Cir. 188, 1989 Va. Cir. LEXIS 236

• Court: Fairfax County Circuit Court
• Decided: June 8, 1989
• Docket: Case No. (Fiduciary) 42466
• Status: Published

Opinion

By JUDGE THOMAS J. MIDDLETON

The above-referenced matter is before the Court on the Executor’s motion to determine the validity of the trust provision contained in Helen Warren Kirkman’s Last Will and Testament. This matter was heard by this Court on May 26, 1980. For the following reasons, it is my opinion that the trust provision (Item IV) should be declared void.

Item IV of Helen Warren Kirkman’s Will provides:

Upon Kathryn’s graduation from a 4-year college, my trustee shall distribute to her $10,000, to do with what she will. When my daughter, Kathryn, attains the age of twenty-five (25) years of age, I give, devise, and bequeath my Trustee to distribute to her 33 and 1/3 percent of the corpus of said trust to do with what she will. When my daughter, Kathryn, attains the age of twenty-eight (28) years of age, my Trustee shall distribute to her 33 and 1/3 percent of the corpus.

Virginia case law provides that a trust provision will be declared void where it fails to identify with definiteness the res of the trust. Massanetta Springs v. Keezell, Adm’r, 161 Va. 532 (1933), in citing Harrison on Wills and Administration, stated:

In order that a court of equity may carry trusts into effect, they must be certain and definite in respect to the objects or persons who are to take, and also in respect to the subject matter thereof .... [Wjhere they are vague and indefinite in either of these particulars, they are void. Id. at 541.

Because the trust provision of Ms. Kirkman’s will does not adequately identify the corpus of the trust in light of Massanetta and the law cited therein, Item IV of the Will is declared void.