But the Uniform Trust Code leaves in place critical equity doctrine, such as unjust enrichment jurisprudence: Litigators beware.

Charles E. Rounds, Jr. - Suffolk University Law School

Settlor of revocable inter vivos trust sends letter to corporate trustee: “I am revoking my Trust as of this date. Consider this my notice to you.” A few days later she dies. There is some evidence that she intended only to remove trustee. We have here an unjust enrichment issue. The Restatement of Restitution (1937) provides that “where there has been an error in legal effect of the language used in a conveyance, the normal proceeding for restitution is by a bill in equity to reform the instrument to accord with the donor’s intent.” See §49, cmt. a. For such equitable relief, extrinsic evidence of intent must be clear and convincing. Instead of applying longstanding core equitable principles, however, the Supreme Court of Nebraska took to parsing and applying Nebraska’s version of UTC § 415 (reformation to correct mistakes), the “parties having not directed us to any pre-NUTC Nebraska case law addressing the admissibility of extrinsic evidence of intent in an action to reform a trust instrument or related document…” See In re Trust Created by Isvik, 741 N.W.2d 638 (Neb. 2007). The doctrine of unjust enrichment is taken up generally in §8.15.78 of Loring and Rounds: A Trustee’s Handbook (2020), which section is reproduced in its entirety in the appendix below.

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