In Ackers v. Comerica Bank & Trust, N.A., an income beneficiary sued a trustee for a declaration regarding the construction of a testamentary trust. No. 11-18-00352-CV, 2020 Tex. App. LEXIS 10442 (Tex. App.—Eastland December 31, 2020, no pet. history). The will provided that the income beneficiary was to receive the income from the corpus of the trust during his lifetime, and upon his death, the trust would terminate and the corpus of the trust would pass to the “then-living descendants” of the income beneficiary. The income beneficiary brought a declaratory judgment action seeking a determination that some of his descendants should be excluded at his death, and the trial court entered summary judgment that the relief sought was not ripe for consideration.

The court of appeals noted that “[r]ipeness examines when an action may be brought, while standing focuses on who may bring an action, and that ripeness ‘emphasizes the need for a concrete injury for a justiciable claim to be presented.’” Id. “If the plaintiff’s claimed injury is based on ‘hypothetical facts, or upon events that have not yet come to pass,’ then the case is not ripe, and the court lacks subject-matter jurisdiction.” Id. The court then reviewed the Uniform Declaratory Judgments Act (UDJA), which states that “[a] person interested under a . . . will . . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder.” Id. (citing Tex. Civ. Prac. & Rem. Code Ann § 37.004(a)). “However, a plaintiff bringing suit under the UDJA must still properly invoke the trial court’s subject-matter jurisdiction[,] [and] the UDJA does not permit courts to render advisory opinions…, and does not authorize a court to decide a case in which the issues are hypothetical or contingent—the dispute must still involve an actual controversy.” Id.

The beneficiary argued that the issue was ripe because he sought a declaration as to who was not included in the class of “descendants” and was not seeking a declaration regarding who was included. The court of appeals disagreed and held:

 We disagree with Appellant’s analysis of ripeness. Appellant’s claim involves making a determination of class membership of a gift made to a class. Appellant acknowledges that the gift to his descendants is a class gift and that his descendants are contingent, non-vested beneficiaries….Under Wilkes, the time for ascertaining Appellant’s descendants who will receive the corpus of the trust is to be determined at Appellant’s death and not before. Until Appellant’s death, the interests of his descendants are only contingent interests. As such, the interests of Appellant’s potential descendants are not ripe for determination because they are based upon an event that “[has] not yet come to pass.” Accordingly, the court lacked subject-matter jurisdiction to consider Appellant’s requested relief.

Id. (internal citation omitted) (citing Wilkes v. Wilkes, 488 S.W.2d 398 (Tex. 1972)).