Law for reference..
36C-4-411. Modification or termination of noncharitable irrevocable trust by consent.
If the settlor and all beneficiaries of a noncharitable irrevocable trust consent, they
may compel the modification or termination of the trust without the approval of the court even
if the modification or termination is inconsistent with a material purpos
e of the trust. If any
beneficiary (i) is a minor or incompetent or a person who is unborn or whose identity or
location is unknown and (ii) is unable to be represented under Article 3 of this Chapter, the
settlor or any competent adult beneficiary or the
representative of any beneficiary properly
represented under Article 3 of this Chapter may institute a proceeding before the court to
appoint a guardian ad litem. The court shall allow the modification or termination if the court
finds that, following the
appointment of a guardian ad litem, all beneficiaries or their
representatives have consented. A settlor's power to consent to a trust's modification or
termination may be exercised by:
An agent under a power of attorney only to the extent expressly au
by the power of attorney or the terms of the trust.
The settlor's general guardian or the guardian of the estate with the approval
of the court supervising the guardianship.
A noncharitable irrevocable trust may be terminated upon consent
of all of the
beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any
material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent
of all of the beneficiaries, if the court conclud
es that modification is consistent with a material
purpose of the trust.
Where the beneficiaries of an a noncharitable irrevocable trust seek to compel a
termination of the trust and the continuance of the trust is necessary to carry out a material
pose of the trust, or where the beneficiaries seek to compel a modification of the trust in a
manner that is inconsistent with its material purpose, the trust may be modified or terminated,
in the discretion of the court, only if the court determines that
the reason for modifying or
terminating the trust under the circumstances substantially outweighs the interest in
accomplishing a material purpose of the trust.
If not all of the beneficiaries consent to a proposed modification or termination of
ust under subsection (a), (b), or (c) of this section, the modification or termination may be
approved by the court if the court is satisfied that all of the following apply:
If all of the beneficiaries had consented, the trust could have been modified
or terminated under this section.
The interests of a beneficiary who does not consent will be adequately
Repealed by Session Laws 2006
259, s. 13(d), effective October 1, 2006.
In determining the class of beneficiaries whose consent
is necessary to modify or
terminate a trust under this section, the presumption of fertility is rebuttable.
If a trust instrument provides for the disposition of property to a class of persons
described only as "heirs" or "next of kin" of any person o
r uses other words that describe the
class of all persons who would take under the rules of intestacy, the court may limit the class of
beneficiaries whose consent is needed to compel the modification or termination of the trust to
the beneficiaries who ar
e reasonably likely to take under the circumstances.
192, s. 2;
259, s. 13(d); 2007
106, s. 17.)
412. Modification or termination because of unanticipated circumstances or
inability to administer trust effectively.
The court may modify the administrative or dispositive terms of a trust or terminate
the trust if, because of circumstances not antic
ipated by the settlor, modification or termination
will further the purposes of the trust. To the extent practicable, the modification must be made
in accordance with the settlor's probable intention.
The court may modify the administrative terms of a
trust if continuation of the trust
on its existing terms would be impracticable or wasteful or impair the trust's administration.