Is there a practical difference between Equitable Deviation and Cy Pres when it comes to seeking modification under the Uniform Trust Code of a charitable trust's administrative term?

Charles E. Rounds, Jr.

Assume an income-only charitable trust with the following administrative term: The trustee may only invest in “insured bank accounts and government securities.” Section 412(b) of the Uniform Trust Code (UTC) provides that a “[t]he court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust’s administration.” According to the official comment to Section 413 of the UTC, which purports to codify cy pres doctrine, the cy pres power may be applied to modify the administrative terms of a trust. Assume that the investment restriction is subverting the trust’s charitable purposes. The practical difference between the UTC §412 remedy and the UTC §413 remedy in this context is not all that easy to discern. See, for what it is worth, In re Estate of Chamberlin, 23 N.Y.S.3d 658, 2016 N.Y. Slip Op. 00087 (2016) (the court modifying such an investment restriction via an application of New York’s homegrown equitable deviation statute). Equitable deviation doctrine is taken up generally in §8.15.20 of Loring and Rounds: A Trustee’s Handbook (2016). Section 8.15.20 is reproduced in its entirety below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Charles E. Rounds, Jr.

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