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Wednesday, January 14, 2009

Cooper: Settlor's Intent, the UTC & the Future of Trust Investment law

Jeffrey A. Cooper (Quinnipiac) has published Empty Promises: Settlor's Intent, the Uniform Trust Code, and the Future of Trust Investment Law, 88 B.U. L. Rev. 1165 (2008).  Here is the abstract:

Many trust documents contain specific investment management directives, such as a mandate that the trustee retain a specific investment. Whereas trust investment law historically has honored the intent of the settlors who impose such restrictions, some would read the Uniform Trust Code (“UTC”) to codify a very different rule. Under this emerging rule, the enforceability of a trust investment restriction would hinge upon objective notions of prudence and efficiency, without regard to a settlor’s subjective intent.

Although the UTC is now the law in nearly half the states, this potentially revolutionary change has received almost no scholarly attention. The scant literature on this subject emphasizes the potential benefits of the emerging rule, predicting it will liberate trust beneficiaries from irrational investment restraints and promote the most efficient deployment of trust investment resources. However, the literature lacks a critical analysis of the effect the emerging rule would have on future trust settlors. This Article fills that void, revealing how the emerging rule would produce a series of undesirable consequences and would weaken trust law by incentivizing trust settlors to avoid its undesirable provisions.

Viewed from this perspective, the emerging benefit-the-beneficiaries rule simply cannot achieve its desired impact, and the promises it offers trust beneficiaries will prove to be empty ones. As such, trust investment law would be better served by expansion of what some might consider less ambitious doctrines – ones which seek to aid the beneficiaries of settlors who have made mistakes or failed to anticipate changed circumstances, but which provide no aid in cases where a settlor intentionally and thoughtfully impaired beneficiaries’ economic rights. Trust investment law cannot meaningfully redress those latter cases. It should not destroy itself by trying.

http://taxprof.typepad.com/taxprof_blog/2009/01/cooper-settlors-intent.html

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