Legal Memorandum: Liberal Construction of Trust Documents

Issue: What is the definition of ‘memorandum’ and the applicability of the statute of frauds within the context of a trust in North Carolina?

Area of Law: Business Organizations & Contracts, Estate Planning & Probate
Keywords: Trust documents; Definition of memorandum
Jurisdiction: North Carolina
Cited Cases: 140 N.C. 495; 403 S.E.2d 542; 169 N.C. 173; 63 S.E. 1028; 85 S.E. 414; 53 S.E. 303; 510 S.E.2d 195; 102 N.C. App. 739; 132 N.C. App. 91
Cited Statutes: N.C. Gen. Laws §§ 22-1, -2; N.C. Gen. Stat. § 36C-6-601; Restatement (Third) of Trusts § 23(2) (a)
Date: 05/01/2011

“Memorandum” is defined generally as “[a]n informal written note or record outlining the terms of a transaction or contract . . . To satisfy the statute of frauds, a memorandum can be written in any form but it must (1) identify the parties to the contract, (2) indicate the contract’s subject matter, (3) contain the contract’s essential terms, and (4) contain the signature of the party against who enforcement is sought.”  See Black’s Law Dictionary 1074 (9th ed. 2005).  A more detailed general definition is found in an older edition of Black’s.  See Black’s Law Dictionary 1135 (4th ed. 1959) (“Also an informal note or instrument embodying something that the parties desire to fix in memory by the aid of written evidence, or that is to serve as the basis of a future formal contract or deed.”).  See also Ballentine’s Law Dictionary 790 (3d ed. 1969) (“an informal writing, [a] brief writing to preserve a thing or an event against loss of memory in respect thereof.”); Jurist’s Browsable Dictionary of Basic U.S. Legal Terminology, Memorandum (“An informal note or instrument embodying something the parties desire to have in written evidence.”), at http://jurist.law.pitt.edu/dictionary.htm#sectM (checked May 23, 2011).

Significantly, North Carolina’s statute of frauds does not apply to trust documents, even when the property put in trust is an interest in land.  See N.C. Gen. Laws §§ 22-1, -2.  “Because North Carolina ‘has never adopted the Seventh Section of the English Statute of Frauds which requires all trusts in land to be manifested […]

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