The Uniform Trust Decanting Act's conflicting commentary

Charles E. Rounds, Jr.
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The texts of the myriad trust-related uniform statutes could be better coordinated and synchronized. So also could the official commentaries that accompany the myriad sections of the individual uniform statute. Take, for example, the Uniform Trust Decanting Act. In the official commentary accompanying §9 of the Act is the following sentence: “Decanting by definition is an exercise of fiduciary discretion and is not an alternative basis for a court modification of the trust.” On the other hand, the commentary accompanying §4 of the Act has the following text: “The exercise of the decanting power need not be in accord with the literal terms of the first-trust instrument because decanting by definition is a modification of the terms of the first trust…Where the trustee has a duty to seek a deviation and the appropriate deviation could be achieved by an exercise of the decanting power, the trustee could fulfill such duty by an exercise of the decanting power rather than seeking a judicial deviation.” The Act also is hardly a model of clarity when it comes to whether a decanting will give rise to a second trust. See generally §8.1.2 of Loring and Rounds: A Trustee’s Handbook (2017) in this regard, which section is reproduced in its entirety below.

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