Ackers v. Comerica Bank & Trust, N.A., Trustee of the Larry Ackers Generation Skipping Trust, No. 11-18-00352-CV, 2020 WL 7863332 (Tex. App.—Eastland Dec. 31, 2020, pet. filed).




A testamentary trust provided that upon termination, all remaining property passes to the beneficiary’s “then-living descendants.” The beneficiary sought to determine the identity of the remainder beneficiaries despite the fact that the beneficiary was still alive. The trustee claimed that the case was not ripe for review. Both the trial and appellate courts agreed.


The remainder gift is a class gift that is contingent on both the beneficiary dying and the descendants outliving the beneficiary. Thus, although there are foreseeable disputes regarding whether certain individuals would qualify as descendants if the beneficiary were to die today, the case was not ripe for judicial determination because it is based on an event, the beneficiary’s death, which has yet to occur.


The beneficiary also claimed that a determination of who would be descendants now is needed so that they could agree to terminate the trust and distribute the assets prior to the beneficiary’s death. The existence of a spendthrift clause in the trust would preclude them from assigning their beneficial interests even if the court determined the identity of the non-vested contingent beneficiaries.


Moral:  The identity of contingent class gift beneficiaries is not ripe for judicial determination until the contingency is removed.