December 28, 2005
Virginia and the Uniform Trust Code
John E. Donaldson (Ball Professor of Law, Emeritus, College of William and Mary, Marshall-Wythe School of Law) and Robert T. Danforth (Associate Professor of Law and Alumni Faculty Fellow, Washington and Lee University School of Law) have recently published their article entitled The Virginia Uniform Trust Code, 40 U. Rich. L. Rev. 325 (2005). Here is an excerpt from the article's introduction:
This article is directed to all of those audiences, with the goal of informing them about the principal features of the legislation and its implications for their practices. In doing so, the article will identify most of the relatively small number of differences between the Virginia UTC and the official text of the UTC as adopted by the National Conference of Commissioners on Uniform State Laws ("NCCUSL").
Part II of the article begins with a summary of the reasons for adopting the UTC, both generally and in Virginia in particular. Part II then provides an overview of the development of the UTC leading up to its adoption by NCCUSL in 2000. Part II then describes the process leading to enactment of the UTC by the General Assembly. Part II also discusses the role of the official NCCUSL Comments in understanding and interpreting the Virginia UTC.
Part III of the article provides an overview of the Virginia UTC. It begins by describing the scope of the Virginia UTC, which applies exclusively to express trusts or trusts required to be administered as express trusts. Part III then describes the manner in which the statute implements the principle of effecting the express intent of the settlor. Part III also describes the few instances in which the terms of a trust instrument cannot override the rules set forth in the statute. Part III further describes the extent to which the common law and principles of equity will continue to govern certain matters concerning the administration of trusts. Part III then describes the function of each of the principal subdivisions of the statute and explains the principal ways in which the Virginia UTC varies from the original.
Part IV provides a detailed discussion of several key concepts utilized in the Virginia UTC, specifically the concepts of "knowledge," "qualified beneficiaries," and "representation," each of which plays a significant role in resolving matters of trust administration.
This discussion is followed by Part V, in which the article examines the numerous ways in which the Virginia UTC facilitates trust administration without judicial intervention.
In Part VI, the article examines several key substantive elements of the Virginia UTC, including the rules concerning judicial modification of trusts, rules governing the liability of trustees, and rules governing the rights of creditors of trust beneficiaries.
Finally, Part VII of the article offers some concluding remarks.
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