Wednesday, July 31, 2019
Russ Willis recently published an Article entitled, Section 112: The Problem Child of the Uniform Trust Code, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
Section 112 of the Uniform Trust Code extends the rules of construction for a decedent's will, "as appropriate," to the interpretation of an irrevocable trust. Even where a decedent's revocable trust (which has become irrevocable at her death) is functioning as a "will substitute," there are several circumstances in which the statute is at odds with the common law.
Anti-lapse, pretermitted heirs, omitted spouses, the surviving spouse's elective share – none of these fit comfortably with the theory under which the revocable trust gained acceptance at common law, which is, that the remainder interests are not contingent, but vested at the inception of the trust, subject to defeasance by the settlor's exercise of her reserved power to amend or revoke, or by her depleting the corpus.
It is unlikely most state legislatures enacting this provision would have understood the nuances of what they were doing. Often the state bar committees drafting the legislation did not. State courts are beginning to struggle with the fallout.