 The settlor may waive anything except:  1. Requirement of valid trust purpose.

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Presentation transcript:

 The settlor may waive anything except:  1. Requirement of valid trust purpose.

 The settlor may waive anything except:  2. Limitations on exculpatory clauses under §

 The settlor may waive anything except:  3. Statute of limitations

 The settlor may waive anything except:  4. Trustee’s duty to account for an irrevocable trust if beneficiary: ▪ Is entitled or permitted to receive current distributions, or ▪ Would receive a distribution if trust ended now.

 The settlor may waive anything except:  5. Trustee’s duty to act in good faith

 The settlor may waive anything except:  6. Trustee’s duty to inform beneficiaries unless: ▪ Beneficiary is under age 25, or ▪ Beneficiary is remote.

 The settlor may waive anything except:  7. Ability of court to take action, e.g., ▪ Deviation ▪ Remove trustee ▪ Exercise jurisdiction over the trust ▪ Bond ▪ Trustee compensation

 The settlor may waive anything except:  8. In terrorem provision not enforceable if good faith and just cause

 Requirements for valid release:  Legal capacity  Full information  Written  Delivered to trustee

 What may be released?  Any duty, responsibility, restriction, or liability.  “Forgive” past misconduct.  Grant “permission” for future misconduct.

 Virtual Representation -- § Binding on beneficiary who can revoke binds all.

 Virtual Representation -- § Minor bound if: ▪ Parent signs, ▪ No conflict of interest, and ▪ No court-appointed guardian

 Virtual Representation -- § Unborn or unascertained beneficiary bound if: ▪ Beneficiary is lineal descendant of consenting beneficiary, and ▪ Substantially identical interest

 Virtual Representation -- §  Less comprehensive than virtual representation in a court proceeding under §  Cannot use VR to modify or terminate trust.

 The “escape” clause

 4 years.  Does not run from date of breach.  Discovery rule applies – when breach is or should have been discovered.  Wright – p. 206

 Unreasonable delay in asserting rights to disadvantage of defendant  E.g., a good faith change in position.