Saturday, February 15, 2014
A trust to maintain specific burial plots cannot be modified to benefit the cemetery generally. The settlor created a trust in 1924 to maintain specific burial plots in a cemetery with any excess income being accumulated. The cemetery petitioned the court to allow it to use 3% of the net value of the trust annually for the general maintenance of the cemetery. The trust is worth approximately $500,000. The Vice Chancellor denied the cemetery’s request holding that (1) the trust is not charitable and therefore cy pres is not possible, (2) modification under state law is not possible because the statutes do not apply to burial lot trusts and even if they did, the statutory tests are not met because the trust has not failed in whole or in part nor is its purpose impossible to achieve, and (3) common law deviation is not possible because carrying out the literal terms of the trust is not illegal or impossible. In re Mary R. Lattimer Trust, 78 A.3d 875 (Del. Ch. 2013).
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.