## Facts

- Harry A. “Bud” Bolinger, III executed a will leaving his entire estate to his father, or, if the father predeceased him, to his stepmother.
- The will expressly disinherited Bolinger’s three children.
- A will paragraph stated the testator was “confident” the father or stepmother would use what they received in the children’s best interests, “in their exclusive discretion.”
- The father or stepmother was nominated as personal representative without bond or restriction of powers.
- Bolinger died about eleven years later; by then, all three children were adults.
- The father petitioned to probate the will but declined to serve as personal representative and suggested appointment of the stepmother.
- The children objected, asserting the quoted “confidence” language created an express trust in their favor and imposed trustee duties on the stepmother.
- The district court ruled the will created an express trust for the children but terminated it and ordered outright distribution to the children, citing hostility between the children and the stepmother.

## Issues

1. Whether the will’s statement of “confidence” that the beneficiaries would use the property for the children’s benefit, in their “exclusive discretion,” created an enforceable express trust or merely precatory language.
2. If a trust existed, whether the district court properly terminated it and distributed the estate outright to the children based on hostility between the stepmother and the children.

## Decision

- The Montana Supreme Court reversed.
- The Court held the will did not create an express trust; the “confidence” provision was precatory and did not impose enforceable fiduciary duties.
- Because no trust existed, the district court erred in declaring and then terminating a trust and distributing assets to the children on that basis.
- The case was remanded for further proceedings consistent with the will’s construction as an outright devise to the father/stepmother, not a trust.

## Legal Principles

- Precatory language in a will (hope, wish, confidence, or moral expectation) does not create a trust unless the will shows a clear intent to impose a legal obligation on the recipient of the property.
- Whether language is precatory or mandatory is determined from the will as a whole; courts may not rewrite a will to reach what they view as a fairer distribution.
- An express trust requires identifiable trust property and beneficiaries plus a clear manifestation of intent to impose enforceable duties; absence of mandatory trust terms weighs against finding a trust.
- Hostility between potential trustee and alleged beneficiaries cannot supply missing trust intent; conflict considerations become relevant only if a trust is first established.

## Conclusion

The court construed the will’s “confidence” clause as nonbinding and held the testator made an outright disposition to the father or stepmother while disinheriting the children; it therefore reversed the lower court’s trust-based distribution order and remanded.


In re Estate of Bolinger, 284 Mont. 114, 943 P.2d 981 (Mont. 1997)