The dark side of codification in the trust space

Charles E. Rounds, Jr.

There is concern that the Uniform Trust Code has been doing some foundational harm to the institution of the trust, a principles-based creature of equity. See, e.g., Thomas P. Gallanis, Codification’s Dark Side, 32 ACTEC L. J. 31 (Fall 2019). See also Chap 1 of Loring and Rounds: A Trustee’s Handbook, specifically pages 12-16 of the 2020 Edition, which pages are reproduced in the Appendix below. Prof. Gallanis is particularly troubled that some jurisdictions are electing not to enact one or both of two mandatory rules found in the UTC’s official version, specifically UTC § 105(b)(8) and (9). The gist of these two mandatory rules taken together is that that even if the terms of the trust provide otherwise, the trustee shall keep the beneficiaries fully informed of all information pertaining to the trust and its administration that the beneficiaries would need in order to protect and defend their equitable property rights. These UTC provisions would more or less codify long-standing equitable principles. Would a legislature’s enactment of a version of the UTC that lacked §105(b)(8) and (9), or their equivalents, have the effect of compromising/eroding/limiting the trustee’s preexisting and longstanding equitable duty to inform? Or would the consequences be quite the opposite? By “quite the opposite” I mean will general principles of equity merely kick in by default? See, e.g., Wilson v. Wilson, 690 S.E.2d 710 (N.C. Ct. App. 2010) (“Applying the rule in Taylor, we hold that the information sought by Plaintiffs was reasonably necessary to enforce their rights under the trust, and therefore could not legally be withheld, notwithstanding the terms of the trust instrument,” this though there is no UTC §105(b)(8) and (9), or their equivalent, in the “mandatory rules” section of North Carolina’s version of the UTC).

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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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