‘Who Should Terminate or Modify Irrevocable Trusts?’

Bradley ES Fogel, Terminating or Modifying Irrevocable Trusts by Consent of the Beneficiaries – A Proposal to Respect the Primacy of the Settlor’s Intent, 50 Real Property, Trusts and Estates Law Journal 337 (2016). Professor Bradley ES Fogel persuasively argues that ‘courts and legislatures should abandon trust termination by consent of the beneficiaries’ (p 378). He proposes that they should instead apply the doctrine of equitable deviation, in which irrevocable trusts (hereinafter ‘trusts’) are modified or terminated only in the case of ‘relevant circumstances not anticipated by the settlor’ and when the court determines that ‘such modification furthers the settlor’s intent’ (p 378). Professor Fogel notes that several commentators ‘have encouraged facilitating trust termination by the beneficiaries to assure that the trust meets the beneficiaries’ needs and to allow for more efficient use of trust assets’ (p 342). However, courts and legislatures, he argues, ‘need to respect the primacy of the settlor’s intent’ …” (more)

[Michael Yu, JOTWELL, 19 September]

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