A longstanding and critical incident of a trustee’s fiduciary duty of loyalty is the duty to vigorously defend the trust’s very existence, as well as all its material provisions (hereinafter “existence defense”), unless it is patently futile or otherwise unreasonable to do so. The trust’s existence might be attacked by a “voider” who would benefit upon judicial imposition of a resulting trust. A material provision might be attacked by a UTC §415 “reformer” who seeks a court order that would judicially include him in a class of beneficiaries to which he had been expressly and unambiguously excluded in the provisions of the trust’s governing instrument.
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