Section 112: The Problem Child of the Uniform Trust Code

Abstract

In what the author argues was an ill-considered move, the drafters of the Uniform Trust Code included a provision extending the rules of construction for a decedent's will, "as appropriate," to the interpretation of an irrevocable trust.

The quoted phrase was likely intended to refer to the circumstance in which a decedent's revocable trust is functioning as a "will substitute," but even here the statute is fundamentally at odds with the common law, and it is likely to cause confusion.

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 in the first instance, 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 now beginning to struggle with the fallout.

Keywords: uniform laws, trust code, rules of construction, pretermitted heir, elective share