Incorporating into a trust instrument a nonjudicial mechanism for effectuating on an ongoing basis the wishes of the deceased settlor: The doctrinal and practical challenges

Charles E. Rounds, Jr. - Suffolk University Law School
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There is much to commend in O’Brien, Proposing a Model Antilapse Clause, 48 ACTEC L. J. 257 (2023), particularly its flagging of the doctrinal and practical flaws in Uniform Probate Code §2-707, which would apply the concept of antilapse to equitable future interests under irrevocable trusts. An elaboration on these flaws may be found in §8.15.55 of Loring and Rounds: A Trustee’s Handbook (2024), which section in its entirety has been uploaded for this posting. See below. I have long advocated that scriveners have a term in their trust instruments negating any application of the likes of UPC §2-707. The ACTEC article offers some suggestions as to how this might be accomplished. A minor quibble with the framing of the third suggestion is the subject of this posting.

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