The UTC does not presume to define a trust, the trust being a creature of the judiciary (equity), not the legislature (statute). Thus, the UTC is merely an aggregation of tweaks to the corner of equity doctrine that governs the trust relationship. The maxim “Equity looks to the intent rather than to the form” is woven throughout the fabric of trust jurisprudence, which is first and foremost principles based. Settlor intent is the “lodestar” the must guide a court when sorting out the duties and rights of the parties to a trust relationship. In fact, it must guide the court in determining whether the relationship itself is one of trust, not one of, say, contract or agency. Perhaps there is no “relationship.” The transferee may have taken the property free of trust, either as donee of an inter vivos gift or as a devisee. It is all about what the transferor had intended. Thus, even oral trusts of personal property are enforced. The UTC in no way tampers with the maxim. The maxim governed before the UTC’s enactment. It has governed since its enactment.

Take the issue of whether an amendment to a revocable inter vivos trust is effective. Assume settlor is murdered as he was about to sign an instrument of amendment. Has the trust been amended? One first consults the maxim. Intent trumps form. The maxim supports its validity. One then consults the UTC to see if it in any way has messed with the maxim. Section 602(c) provides that the settlor may revoke or amend a revocable trust: (1) by substantial compliance with a method provided in the terms of the trust; or (2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by: (A) a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or (B) any other method manifesting clear and convincing evidence of the settlor’s intent.” In other words, intent shall prevail over form. The UTC may have enveloped the maxim in a statutory fog when it comes to instruments of amendment, but it has not messed with it substantively. UTC §602(c) and the maxim co-exist.

In In re the Omega Trust, 281 A.3d 1281 (N.H. 2022), the Sup. Ct. of N. H. wrestled with the issue of whether a rev. i.v. trust had been amended via a series of emails from the settlor to his lawyer requesting that an instrument of amendment be prepared, the settlor having died before a formal amendment could be signed. Rather than apply the maxim, the court spilled much ink parsing New Hampshire’s version of UTC §602(c). Though the maxim was never mentioned, the holding was as if the maxim had been applied: “We conclude that the method at issue here—an expression of intent to amend by email—is capable of manifesting, by clear and convincing evidence, the settlor’s intent…Because the settlor’s intent ‘is a question of fact to be determined by competent evidence and not by rules of law,’…we leave the question of the settlor’s intent to the trial court to determine in the first instance.”

Note 1: The statute of frauds applicable to trusts of land is a minor exception to the intent-over-form equity maxim. The statute is discussed in §8.15.5 of Loring and Rounds: A Trustee’s Handbook (2023). The section is reproduced in the appendix below. The Handbook is available for purchase at https://law-store.wolterskluwer.com/s/product/loring-rounds-trustees-hanbook-2023e/01t4R00000Ojr97.

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Note 2: A will, unlike a trust, is a creature of statute. Thus, it is up to the legislature whether a testator need only have substantially complied with statutory will-execution formalities, i.e., whether the intent-over-form equity maxim shall also govern the execution of wills and codicils.